# Hummel v. Smith

> Supreme Court of Pennsylvania · July 2, 1982 · 301 Pa. Super. 276

URL: https://www.frixlaw.com/law-library/cases/9715716

## Case

- **Full name:** Patricia A. HUMMEL, Appellant, v. James C. SMITH
- **Court:** Supreme Court of Pennsylvania
- **Decided:** July 2, 1982
- **Citations:** 301 Pa. Super. 276; 447 A.2d 965; 1982 Pa. Super. LEXIS 4544
- **Precedential status:** Published
- **Opinion:** Concurrence by Beck
- **Judges:** Wickersham, Beck, Popovich
- **Cited by:** 6 later opinions in the Frix Law Library

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## Opinion text

BECK, Judge,
concurring:
I concur in the majority’s holding that the failure of Patricia A. Hummel to file an action under the now repealed criminal statute, Section 4323 of the Crimes Code, 18 Pa.C.S. § 4323, does not preclude her filing a civil complaint pursuant to Sections 6701-13 of the Judicial Code, 42 Pa.C.S. §§ 6701-13. Williams v. Wolfe, 297 Pa.Super. 270 , 443 A.2d 831 (1982).
However, careful consideration of the Equal Protection Clause of the United States Constitution, as well as the Pa.Const. art. I, § 26, compels me to adopt the position suggested by Justice Sandra Day O’Connor in Mills v. Habluetzel, - U.S. -, 102 S.Ct. 1549 , 71 L.Ed.2d 770 (1982) (O’Connor, J., concurring, with three justices joining the entire concurrence and with Powell, J., joining all but the last paragraph of the concurrence and concurring separately) and espoused by Judges Brosky and Popovich in Wolfe (reiterated by Judge Popovich in the instant case), that where a paternity suit stems from a support action on behalf of an illegitimate child, the paternity suit may not be barred during the child’s minority by a statute of limitations.
In paternity suits the court must reconcile three distinct, and often competing, interests—the interests of the illegitimate child, the interests of the alleged father, and the interests of the state.
The private interests implicated here are substantial. Apart from the putative father’s pecuniary interest in avoiding a substantial support obligation and liberty interest threatened by the possible sanctions for noncompliance, at issue is the creation of a parent-child relationship. This Court frequently has stressed the importance of familial bonds, whether or not legitimized by marriage, *284 and accorded them constitutional protection. See Stanley v. Illinois, 405 U.S. 645, 651-52 [ 92 S.Ct., 1208, 1212-13 , 31 L.Ed.2d 551 ] . . . (1972) .... Through the judicial process, the State properly endeavors to identify the father of a child born out of wedlock and to make him responsible for the child’s maintenance. Obviously, both the child and the defendant in a paternity action have a compelling interest in the accuracy of such a determination.
The State admittedly has a legitimate interest in the welfare of a child born out of wedlock who is receiving public assistance, as well as in securing support for the child from those legally responsible. In addition, it shares the interest of the child and the defendant in an accurate and just determination of paternity ....
Little v. Streater, 452 U.S. 1, 14 , 101 S.Ct. 2202, 2209 , 68 L.Ed.2d 627, 637 (1981) (unanimous decision) (footnote deleted).
Historically, a statute of limitations has been invoked in paternity suits to promote “an accurate and just determination of paternity,” id., by “preventing the prosecution of stale and fraudulent claims . ...” 1 Habluetzel at -, 102 S.Ct. at 1556 , 71 L.Ed.2d at 780 (O’Connor, J., concurring). Consequently, the arguments favoring a statute of limitations have been that with the passage of time evidence either becomes unreliable as witnesses’ memories fade or becomes unavailable as witnesses move to foreign jurisdictions and photographs or documents are misplaced or destroyed. Id. at - n.9, 102 S.Ct. at 1556 n.9, 71 L.Ed.2d at 779 n.9.
But as the United States Supreme Court observed in Streater , the strength of these arguments has been dramati *285 cally attenuated by recent technological advances in ascertaining parentage through comparisons of gene frequencies in blood group tests. 2
The ability of blood grouping tests to exonerate innocent putative fathers was confirmed by a 1976 report developed jointly by the American Bar Association and the American Medical Association. Miale, Jennings, Rettberg, Sell & Krause, Joint AMA-ABA Guidelines: Present Status of Serologic Testing in Problems of Disputed Parentage, 10 Fam.L.Q. 247 (1976). The joint report recommended the use of seven blood test ‘systems’—ABO, Rh, MNS, Kell [K, k], Duffy [Fya, Fyb], Kidd [Jka, Jkb], and HLA [Human Leucocyte Antigen]—when investigating questions of paternity. Id. at 257-58. These systems were found to be ‘reasonable’ in cost and to provide a 91% cumulative probability of negating paternity for erroneously accused Negro men and 93% for white men. Id. at 254, 257-58.
. . . The importance of that scientific evidence is heightened because ‘[t]here are seldom accurate or reliable eye witnesses since the sexual activities usually take place in intimate and private surroundings, and the self-serving testimony of a party is of questionable reliability .. .. ’
. . . [B]ecause of its recognized capacity to definitively exclude a high percentage of putative fathers, the availability of scientific blood test evidence clearly [is] a valuable procedural safeguard .... Unlike other evidence that may be susceptible to varying interpretation or disparagement, blood test results, if obtained under proper *286 conditions by qualified experts, are difficult to refute
Id. at 633-37 (footnotes deleted) (citations omitted). 3 , 4
Pennsylvania has long accepted the utility and accuracy of blood group tests as a means of establishing non-paternity.
[T]he first of the many thousands of reported cases in America on this subject (according to 163 A.L.R. 940 ) is Commonwealth v. Zammarelli, 17 Pa.D. & C. 229 (1931), in which the late Judge Morrow, of Fayette County, granted the defendant a new trial in a bastardy case because the uncontradicted evidence of a medical expert called by the *287 defendant was that blood tests showed the defendant could not have been the father of the child.
Commonwealth v. Coyle, 190 Pa.Super.Ct. 509, 512 , 154 A.2d 412, 413 (1959), allocatur refused, November 24, 1959; Commonwealth v. Gromo, 190 Pa.Super.Ct. 519 , 154 A.2d 417 (1959) (validity of A-B-O, M-N, Rh-Hr blood tests).
Modern Pennsylvania paternity suits are governed by the Uniform Act on Blood Tests to Determine Paternity (“Act”), 42 Pa.C.S. §§ 6131-37, which was enacted “in the belief that such [blood] tests, which make possible a scientifically reliable determination excluding paternity, may be helpful in those actions ‘in which paternity ... is a relevant fact . . .’” Adoption of Young, 469 Pa. 141, 147 , 364 A.2d 1307, 1310 (1976) (footnote deleted). Pursuant to Section 6136 of the Act,
[i]f the court finds that the conclusions of all the experts as disclosed by the evidence based upon the [blood] tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.
Nevertheless, Section 6704(e) [“Limitation of actions”] of the Judicial Code, 42 Pa.C.S. § 6704(e), as construed by the majority, ignores the heightened predictability of current blood testing and fosters disparate treatment of illegitimate and legitimate children whereby an illegitimate child’s right to receive support from his natural father may be foreclosed by (1) the failure to institute a paternity suit on the child’s behalf 5 within six years of the child’s birth, (2) the failure of the father thereafter to acknowledge (in writing) the child or to contribute to the child’s support (although the father’s *288 inaction may have resulted from the mother’s failure to notify the father of his parenthood), and (3) the failure to bring a paternity suit on the child’s behalf 6 within two years of a written acknowledgement or support contribution from the father. Thus, while the child may be too young to understand his status and potential rights as an illegitimate, the child’s claim to support from his natural father may be defeated by inaction which the child can neither protest nor influence.
As Judge Brosky stated in his Wolfe concurrence,
[t]here can be no doubt that both the mother and father of a child born out of wedlock have the duty to support such child. Commonwealth v. Rebovich, 267 Pa.Super.Ct. 254 , 406 A.2d 791 (1979). To subject a child born out of wedlock to a limitation period, however reasonable, is to limit that child’s unqualified right to receive support from his father. As other jurisdictions have found, such limitation upon an illegitimate child’s right to receive support violates the Equal Protection clause of the United States Constitution.
Wolfe, 297 Pa.Super.Ct. at 280 , 443 A.2d at 836 ; Norris v. Beck, 282 Pa.Super.Ct. 420 , 422 A.2d 1363 (1980).
Addressing the issue of disparate treatment of illegitimates, the United States Supreme Court has repeatedly
found unconstitutional several state statutes which discriminate against illegitimates. For example, the rights of illegitimates became coextensive with those of legitimates in recovering damages in wrongful death actions [Weber v. Aetna Casualty and Surety Co., 406 U.S. 164 , 92 S.Ct. 1400 , 31 L.Ed.2d 768 (1972) ], in collecting insurance proceeds as a beneficiary under a state’s workman’s compensation system [Gomez v. Perez, 409 U.S. 535 , 93 S.Ct. 872 , 35 L.Ed.2d 56 (1973) ], and in asserting the right to support from the natural father [Lalli v. Lalli, 439 U.S. 259 , 99 S.Ct. 518 , 58 L.Ed.2d 503 (1978)].
*289 Beck, Nontraditional Lifestyles and the Law, 17 J.Fam.L. 685, 694 (1978-79); see also Commonwealth ex rel. Atkins v. Singleton, 282 Pa.Super.Ct. 390, 405-06 , 422 A.2d 1347, 1355 (1980) (Brosky, J., dissenting).
Since the statute of limitations controlling a paternity suit effectively bars the right of an illegitimate child to have a support action against his natural father initiated throughout the child’s minority and since the support claims of a legitimate child can be raised throughout the child’s minority, Section 6704(e) of the Judicial Code unconstitutionally abridges an illegitimate child’s right to parental support. Id., 282 Pa.Superior Ct. at 404, 422 A.2d at 1354 (Brosky, J., dissenting). Accordingly, I concur.
. In Mills v. Habluetzel, - U.S. -, 102 S.Ct. 1549 , 71 L.Ed.2d 770, 780 (1982) (O’Connor, J., concurring) the putative father “set forth a number of ‘state of interests’ to justify the one-year [Texas] statute of limitation, but the Court accepts only one of these as permissible—the interest in preventing stale or fraudulent claims.”
. In the 1930’s ABO blood testing which produced a probability of exclusion from paternity of merely 13.4% was introduced into evidence in paternity suits. Ellman & Kaye, Probabilities and Proof: Can HLA and Blood Group Testing Prove Paternity?, 54 N.Y.U.L.Rev. 1131, 1136 (1979). Today gene frequency statistics are available for 25 blood groups, and use of seven blood group tests yields a cumulative probability of exclusion greater than 90%. Lee, Current Status of Paternity Testing, 14 Fam.L.Q. 615, 627 (1975).
. Each blood group yields a particular probability of exclusion from paternity. “The cumulative chance of exclusion is not equal to the sum of individual chances .... Since a person cannot be excluded more than once, the cumulative chance of exclusion ... is the sum of the exclusions in [the blood groups tested] minus their product .... ” Lee, supra at 628-29. Thus, the cumulative probability of exclusion varies with the type and number of blood groups tested. For example, whereas the joint AMA-ABA guidelines reported a cumulative probability of exclusion of 93% for white men based upon testing seven blood groups, testing a different combination of seven blood groups [21 HLA genetic markers; MNS; D,C,Cw,c,E,e; AcP (A,B,C); Ai,A2,B,0; Glma,Glmx,G3mb; Jka,Jkb (Kidd)], as reported by Lee, yielded a cumulative probability of exclusion of 95.5%. Id. at 627.
. The HLA (Human Leucocyte Antigen) system is among the most sophisticated and valuable parentage research tools.
The HLA system is the most complex genetic system known in man. It consists of, at a minimum, hundreds of closely linked genes that function in determining the susceptibility to certain diseases, the immune response, and the rejection of transplanted tissue .... [T]he factors expressed by the HLA genes are present in most cells, and HLA testing can be thought of as tissue typing rather than blood group typing.
Since many combinations of the numerous antigens, or genetic markers, in the HLA system .. . occur very infrequently in the population at large, HLA typing excludes a high proportion of falsely accused defendants. A man is excluded if he and the mother both lack an antigen which the child has, or if the child lacks an antigen which any offspring of the defendant and the mother would necessarily possess ....
Ellman & Kaye, supra at 1138-39 (footnotes deleted). Lee states that by itself the HLA system yields a 76% chance of exclusion from paternity. Lee, supra at 627. “|T]he introduction of the HLA blood test serves to minimize the effect of the passage of time on paternity determinations by shifting the weight of the evidence to one side.” Commonwealth ex rel. Atkins v. Singleton, 282 Pa.Super.Ct. 390, 405 , 422 A.2d 1347, 1355 (1980) (Brosky, J„ dissenting).
. Section 6704(b) of the Judicial Code provides that
[a] complaint may be filed by any person ... to whom a duty of support is owing. It shall be filed on behalf of a minor child by a person having custody of the minor .... It may be filed by any public body or public or private agency having any interest in the care, maintenance or assistance of any person to whom a duty of support is owing.
. See footnote 5, supra.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9715716. Public record. Not legal advice.