Tyler v. King

BECK, Judge,

dissenting:

I respectfully dissent from the majority opinion. I would hold that Section 6134 of the Uniform Act on Blood Tests to Determine Paternity (Uniform Act) requires the court to provide an expert witness to interpret and attest to the *97 accuracy of blood tests in a paternity proceeding. 42 Pa.C.S.A. § 6134. I would further hold that the parties may not waive this requirement.

Section 6134 of the Uniform Act provides that “[tjests shall be made by experts ... who shall be appointed by the court. The experts shall be called by the court as witnesses ... and shall be subject to cross-examination by the parties.” (Emphasis added.) This language is a mandatory direction to the court, requiring it to call an expert witness, and is not, as the majority contends, a grant of authority to the court, merely permitting it to call an expert in its discretion.

The majority maintains that “where a statute’s mandatory language pertains to the action of a court, it is usually a grant of authority.” Maj. op. at 20. However, this generalization as applied to the case sub judice does not find support in the cases cited by the majority. 1

*98 Recent case law clearly establishes that the word “shall” in a statute is to be construed as a mandatory, rather than a permissive, direction. Burrows v. State Employees’ Retirement Board, 76 Pa.Commw. 84, 463 A.2d 106 (1983) (statute stating that the Retirement Board “shall” have applicant examined was held to be a mandatory instruction to the Board); see also Board of Pensions and Retirement of City of Philadelphia v. Hodge, 72 Pa.Commw. 59, 455 A.2d 1270 (1983); City of Philadelphia v. Shapp, 44 Pa. Commw. 303 , 403 A.2d 1043 (1979).

Moreover, the majority’s interpretation of Section 6134 would result in a superfluous grant to the court of authority it already possesses. The majority construes Section 6134 to permit the court to call experts, but the court has inherent power in any case to call experts where evidence beyond the common knowledge of the trier of fact must be evaluated. Therefore, it is nonsensical to interpret Section 6134 as simply allowing the court an opportunity to call expert witnesses.

The majority supports its construction of Section 6134 by noting that Section 6133 of the “Act ... allows paternity determinations to be made without blood tests,” and that under section 6132(b)(3) and 6136 of the Act, “expert testimony is not the sole or paramount form of evidence used in paternity cases.” Slip op. at 6. While these statements may be correct, it does not follow, as the majority would have us believe, that experts are not required once blood tests have been introduced into evidence.

The aforementioned sections of the Uniform Act to which the majority refers merely provide guidance to the court in evaluating evidence under specific circumstances. Section 6136, 42 Pa.C.S.A. § 6136, states that

if the court finds that the conclusions of all of the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity ... shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.

*99 As the majority asserts, this section does require a paternity determination based upon all the evidence. However, a determination based upon all the evidence is necessitated only where the experts disagree. Thus, it is clear that Section 6136 presumes the testimony of experts where blood tests are introduced. Section 6136 then does not imply, as the majority suggests, that expert testimony is unnecessary under the Uniform Act; rather it reinforces the conclusion that Section 6134 mandates expert testimony where blood tests are introduced. 2 Section 6134 is specific as to the requirement of experts and the mandate of the section is not modified by other provisions of the statute which do not relate to the integrity and reliability of blood tests.

In mandating expert testimony under the Uniform Act, the legislature demonstrated its awareness that the complexity of scientific evidence in paternity determinations requires expert interpretation to assure a proper evidentiary evaluation. This court has similarly recognized the importance of expert testimony in various contexts such as those involving HLA blood test results. In holding HLA blood tests admissible, this court in Turek v. Hardy, 312 Pa.Super. 158 , 458 A.2d 562 (1983), stated that “[wjhile we believe that ... the reliability of HLA testing has been established, we do agree with the Utah court’s view that a *100 foundation must be laid in each case.” Id. at 565. 3 Establishing a proper foundation for blood test data necessitates expert testimony on, inter alia, the effect of racial and ethnic variables, factors affecting the test’s accuracy, and proper procedures for performing the test. Thus, even in the absence of Section 6134’s mandate, expert testimony is needed. Turek .

In addition, because I construe Section 6134 of the Uniform Act as a mandatory direction to the court to provide expert testimony, I would hold that the parties may not waive this requirement. In concluding that the requirement for expert testimony may be waived, the majority analogizes civil paternity suits to criminal cases. According to the majority, since criminal defendants may waive certain constitutional guarantees {e.g., the right to a jury trial), paternity defendants in civil actions may do the same.

I find the majority’s analogy inappropriate. In a criminal trial, the defendant may waive rights affecting solely his own interests. But the right to blood testing is not a right exclusive to any party in a civil paternity action. Section 6133 of the Uniform Act states that “the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action ..., shall order ... blood tests.” The nonexclusivity of the right to blood tests underscores the purpose of such evidence in a paternity suit, i.e., the enhancement of the truth-finding process. Therefore, I conclude that in a case where blood tests have been conducted and evidence related thereto has been introduced into evidence, expert testimony regarding such evidence may not be waived. The truth-finding process is served only if experts are available to explain, support, or contest, inter alia, the blood testing procedures, the raw numerical data, and the meaning of the test results.

*101 Assuming arguendo that the requirement for expert testimony could be waived, I would find that the stipulation made by appellant in the case sub judice does not constitute such a waiver. A stipulation must be construed according to the intent of the parties. Longenecker v. Matway, 315 Pa.Super. 411 , 462 A.2d 261 (1983). Here, it is clear that appellant intended to predicate the court’s use of the blood test results on the admission of expert testimony.

Appellant made the following statement when the tests were introduced at trial: “As indicated earlier in the record, we have no objection to the admissibility of the test, with this specific proviso: that we believe that it is a matter of statistical evidence as to the proper interpretation of the results. And absent testimony by an expert witness, these results do not have a legal significance.” Record at 41. Clearly, the appellant agreed to the admissibility of the blood tests but did not agree to waive expert testimony.

For the foregoing reasons, I would remand for a new trial consistent with this opinion.

. The majority cites three cases, Becker v. Lebanon, etc., St. Ry. Co., 188 Pa. 484 , 41 A. 612 (1898), In re Anderson’s Appeal, 215 Pa. 119 , 64 A. 443 (1906) and Morrison v. Unemployment Compensation Board of Review, 141 Pa.Super. 256 , 15 A.2d 391 (1940), each of which require a more limited application than that granted by the majority. Essentially, Becker holds that in the face of a statutory directive that the court shall grant an injunction, “[t]he injunction is not to be granted unless a proper case for injunction be made out, in accordance with the principles and practice of equity.” Id. 188 Pa. at 496 , 41 A. at 613 . In Anderson, the statute provided that “any officer or officers failing to give the security required by the first section of this act within one month after his election, then his or their offices shall be declared vacant____” (Emphasis added). Anderson held that a court could inquire into the circumstances surrounding failure to post a bond because it was not the purpose of the statute to oust newly elected officials who failed to post the required bond through no fault of their own. To hold otherwise would clearly have been contrary to the purpose of the statute as indicated by the other sections of the Act and by case law; a similar situation does not exist in the case sub judice. Finally, Morrison concerns a statute directing the Board to hear appeals within a specified period of time. It held that an automatic verdict for appellant in the event that the Board fails to comply with the time constraint is improper under the statute. Each of these cases grants limited discretion to a court in the face of a directive statute where to do otherwise would render a grave injustice. This clearly does not hold true in the case sub judice. Requiring blood tests in paternity proceedings serves only to enhance the truth-finding process.

. The majority also refers to Sections 6132(b)(3) and Section 6133 as support for its conclusion that expert testimony is not required by Section 6134 for the same reasons as stated above with regard to Section 6136. Logic does not support this conclusion. Section 6132(b)(3) is analogous to Section 6136 but applies to criminal proceedings; it allows the court to "direct a verdict of acquittal upon the conclusions of all the experts under the provisions of section 6136 (relating to effect of test results), otherwise the case shall be submitted for determination upon all the evidence.” 42 Pa.C.S.A. § 6132(b)(3). Section 6133 allows the court to resolve the question of paternity against a party who refuses to submit to blood tests or “to enforce its order if the rights of others and the interests of justice so dictate." 42 Pa.C.S.A. § 6133. Again, this provision does not imply that expert testimony is not required where blood tests are introduced. Rather, Section 6133 pre-approves a specific judgment or order by the court in the instance where a party refuses to submit to blood tests.

. Turek allowed HLA blood tests to be evidence of the likelihood that a particular male is father of the child. Before Turek , blood tests were admitted only to exclude the alleged father from paternity. In the case sub judice, HLA blood tests were also introduced to show likelihood of paternity.