H.Z. v. M.B.

J-A05006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.Z., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

M.B.,

Appellant No. 2470 EDA 2015

Appeal from the Order entered August 10, 2015,
in the Court of Common Pleas of Montgomery County,
Domestic Relations Division, at No(s): 2010-18179

BEFORE: OLSON, OTT, JJ., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.: FILED JUNE 28, 2016

Appellant M.B. appeals from the order dated August 6, 2015, and

entered on August 10, 2015, that directed him to submit to genetic testing

to prove paternity of H.Z.’s (“Mother”) minor child, J.B.Z. (“Child”), who was

born in April 2005. The trial court entered the order after a hearing on

M.B.’s Emergency Motion to Dismiss/Preliminary Objections to Mother’s

Complaint for Child Support. After careful consideration, we affirm.

On March 3, 2005, Mother filed a petition for paternity and child

support against M.B. in New York County, New York (“New York Child

Support/Paternity Petition”); see N.Y. Family Court Act § 511-565

(regarding “[p]roceedings to establish the paternity of the child and to

compel support”). On March 28, 2006, Mother and M.B. entered into a

* Former Justice specially assigned to Superior Court.
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purported “Stipulation of Discontinuance” with respect to that action. In

relevant part, the Stipulation of Discontinuance read:

IT IS HEREBY STIPULATED by and between the undersigned
that the present paternity proceeding and [Mother’s] cause
of action against [M.B.] for an order of filiation and an order
of support are hereby discontinued with prejudice as of the
date hereof.

Dated: New York, New York
March 28, 2006

/s
_____________________
[Mother]

/s
____________________
[M.B.]

Stipulation of Discontinuance, Exhibit G to M.B.’s Emergency Motion to

Dismiss/Preliminary Objections and Stay of Genetic Testing, 3/28/06, at 1

(emphasis in original) (hereinafter “Stipulation of Discontinuance” or “New

York Stipulation of Discontinuance”).

The trial court set forth the procedural history of the Pennsylvania

litigation as follows.

On May 17, 2010, [Mother] filed a complaint for child support
with the Montgomery County[, Pennsylvania] Domestic
[R]elations section [(hereinafter “Pennsylvania Child Support
Complaint”)]. Defendant [M.B.] anticipated that he would be
ordered to submit to genetic testing as a matter of course, as
required by Pa.R.C.P. 1910.15(b)(1), since he intended to deny
that he is the father. Accordingly, on July 7, 2010, [M.B.] filed
an “Emergency Motion to Dismiss/Preliminary Objections and
Stay of Genetic Testing.” [M.B.] argued that he could not be

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compelled to provide a specimen for testing to determine
paternity because the matter was res judicata on March 28,
2006 when [Mother] entered into a stipulation to [discontinue],
with prejudice, [the] support/paternity claim she had filed in
New York. [Mother answered M.B.’s preliminary objections and
claimed that, for a variety of reasons, the New York Stipulation
of Discontinuance did not preclude her current action for
support. One of these reasons, Mother claimed, was because
application of the doctrine of res judicata would “work an
injustice” and cause an inequity in this case. See Mother’s
Answer to Preliminary Objections, 8/3/10, at 8-9]. . . .

By order entered on July 15, 2010, upon the agreement of
counsel, the Honorable Emanuel A. Bertin, [of the Montgomery
County Court of Common Pleas,] stayed the proceedings before
the domestic relations section pending further proceedings
before Judge Bertin and his ruling on whether [Mother] had the
right to renew her claim that [M.B.] is the father. This matter
was rotated from Judge Bertin to the Honorable R. Stephen
Barrett in April[] 2014, and then to the [Honorable Arthur R.
Tilson] in March, 2015.

On June 10, 2015, [Judge Tilson] presided [over] an evidentiary
hearing on [M.B.’s] motion/preliminary objections to dismiss
[Mother’s] complaint for support.

Trial Court Opinion, 10/16/15, at 1-2.

At the hearing on the motion to dismiss/preliminary objections held on

June 10, 2015, Mother testified on her own behalf, as did M.B. On August

10, 2015, the trial court entered the order that directed M.B. to submit to

genetic testing.

In its opinion, the trial court explained the rationale for its order

denying M.B.’s motion to dismiss/preliminary objections and directing him to

submit to genetic testing:

As noted previously, [M.B.] asked [the trial court] to summarily
dismiss [Mother’s complaint] on the ground that [the New York

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Stipulation of Discontinuance acted as a bar to Mother’s action
for child support]. The affirmative defense of res judicata can be
evoked to bar a subsequent action when there is: (1) identity of
the parties; (2) capacity of the parties; (3) identity of the issues;
and (4) identity of the cause of action. E.g., Scott v. Mershon,
657 A.2d 1304 (Pa. Super. 1995). However, the purpose of the
bar of res judicata is not to categorically disallow all subsequent
proceedings but rather to insulate a litigant from repetitive[,]
vexatious litigation and to conserve judicial resources. Balent
v. City of Wilkes-Barre, 669 A.2d 309, 315 (Pa. 1995). Thus,
even when the four elements are shown, it is well-established
that a subsequent action may nevertheless proceed when the
prior judgment was the result of fraud or mutual mistake. E.g.,
R.J.K. v. B.L., 420 A.2d 749 (Pa. Super. 1980). Similarly, the
doctrine of res judicata is applied sparingly in zoning questions
where the benefits of flexibility outweigh the detriments of
repetitive litigation. E.g., City of Pittsburgh v. Zoning Bd. of
Adjustment of City of Pittsburgh, 559 A.2d 896 (Pa. 1989).
Finally, new evidence that could not have been presented during
the prior adjudication will defeat the bar of res judicata. E.g.,
Bethlehem Pennsylvania, Department of Environmental
Resources, 90 A.2d 1383 (Pa. Cmwlth. 1978).

The evidence presented at the hearing . . . strongly militated in
favor of [ordering M.B. to submit to] genetic testing. First,
[Mother] presented to the [trial court] credible and compelling
evidence, in the form of her testimony, that no man could
possibly be the father except for [M.B.]. [Mother] also described
the circumstances by which she and [M.B.] had been drinking
alcohol at an after-work party, how she afterwards invited [M.B.]
into her apartment, and how the two of them had sex without
using birth control. [Mother] missed her next menstrual period
and thereupon confirmed that she had, indeed[,] become
pregnant by her only sexual partner since her previous
menstrual period. This testimonial evidence was not heard
during the New York proceedings.

Second, when [M.B.] learned that [Mother] had become
pregnant soon after they had sex[,] his conduct amounted to a
tacit admission that he was the father. For example, [M.B.]
attempted to persuade [Mother] to terminate the pregnancy by
abortion[] and[,] in the alternative, [M.B.] asked [Mother] to
keep secret that he was the father in exchange for his promise
to acknowledge paternity when the time was right. [M.B.’s]

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motive was to avoid the immediate professional and personal
scandal he feared would follow from an express
acknowledgement that he had gotten [Mother] pregnant, since
the two of them had worked closely together in a professional
capacity; [M.B.] as a neurosurgeon and [Mother] as a surgical
nurse.

Third, the [trial court] heard evidence that reflected poorly on
the circumstances and integrity of the clinical specimen-taking
procedure that was the sole basis of the prior [discontinuance]
[in New York] upon which [M.B.] in this matter now relies. No
evidence was allowed at the earlier proceeding on the issue of
whether proper specimen collection protocols were followed but
[Mother] testified credibly before the undersigned that the
specimens from [Mother], [M.B.,] and [Child] were not taken
contemporaneously, and that [Mother’s] and [Child’s] specimens
were not properly sealed and secured against mishandling or
tampering. From [Mother’s] description of the specimen-taking
procedure she observed, [the trial] court concluded that the
earlier genetic testing procedure was informal, at best, and
potentially unprofessional and reckless.

Fourth, and perhaps most importantly, vital new photographic
evidence was presented to the undersigned to show that the
child has matured to bear an amazing physical resemblance to
[M.B.]. This evidence of a strong physical resemblance could not
have been presented at the earlier proceeding because [Child]
was[,] . . . at the time[,] less than [one-year] old.

The totality of the foregoing findings lead the [trial court] to
conclude that the outcome of the prior proceeding (and its
assumed premise that good science had proven conclusively that
[M.B.] could not possibly be the father) was shockingly
unreliable and that the bar of res judicata should yield under
these unusual circumstances to allow [the trial] court to reach
the underlying merits of [Mother’s complaint for child support,] .
. . depending on the results of the genetic testing ordered in
these proceedings. This was especially so given several
concerns. The first is the best interests of the child. This is a
particular circumstance where [Child] has two inherited medical
conditions – which do not run in [Mother’s] family – and
identifying the father would be beneficial for medical treatment.
Apart from that, [Child] at present has no idea who is his father.
As mentioned above, the chronology of [Mother’s] insemination

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and pregnancy resulted in a situation where [Mother currently]
makes no claim that any other man is [Child’s] father.

The child born out of wedlock . . . has an interest in
knowing his father and in having two parents to provide
care for him. The child’s concerns include a known
belonging to a certain line of descent with knowledge of
any benefits or detriments inheritable from that line.
Further, the child is entitled to financial assistance from
each parent able to provide such support.

Minnich v. Rivera, 506 A.2d 879, 882 (Pa. 1986).

[Moreover], . . . [c]ounsel for [Mother] has represented to [the
trial] court that a laboratory finding adverse to [Mother’s] claim
will resolve the dispute over paternity, once and for all; a dispute
that has roiled now, off and on, for ten years. Finality and
closure can be best achieved by reaching the merits of
[Mother’s] claim.

In this connection, apart from the primary position taken by
[M.B.] in this matter, that [Mother] cannot avoid the bar of res
judicata with only extrinsic proof, [M.B.] argued in the
alternative that [Mother’s] delay in bringing these proceedings
warrants their summary dismissal. But to the contrary, [M.B.]
cannot show how the passage of time has caused him any
prejudice – except that the genetic testing ordered by [the trial]
court will prove him to be the father – and [Mother] has proven
that the delay in this case was never caused by any doubt she
has ever had that [M.B.] is the child’s father. [See N.T. Hearing,
6/10/15, at] 71-72 ([Mother] explaining that she withdrew prior
action only upon advice of counsel based on prior, suspect,
paternity test). Rather it was financial hardship that caused the
delay. Indeed there is no better explanation for [Mother’s] delay
after she had surreptitiously obtained a specimen of [M.B.’s]
DNA, and then afterwards a laboratory report that purportedly
concluded that [M.B.] was the father, were it for any other
cause. The [trial court] granted [M.B.’s] motion in limine and
ruled that second laboratory report inadmissible hearsay, and its
purported conclusion did not figure in the decision to allow
[Mother] to proceed on the merits during these proceedings, but
the second genetic test results are nevertheless powerful proof
that [Mother’s] delay was not caused by any doubt on her part
that [M.B.] is [Child’s] father.

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Trial Court Opinion, 10/16/15, at 2-6 (internal footnote omitted) (some

internal citations omitted) (parallel citations omitted).

On August 13, 2015, M.B. filed a notice of appeal, along with a concise

statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(a)(2)(i) and (b), and a motion for an emergency stay.1 On August 20,

2015, the trial court entered an order denying M.B.’s emergency motion for

a stay of the August 10, 2015 order pending appeal. On August 25, 2015,

M.B. filed an emergency motion for a stay of the August 10, 2015 order

pending appeal with this Court. On September 4, 2015, this Court entered a

per curiam order granting the emergency motion for a stay pending the

appeal.

In his brief on appeal, M.B. raises the following claims:

1. Did the trial court err in ordering [M.B.] to submit to
additional paternity testing by failing to properly consider that
the parties litigated [Mother’s] same paternity claim over ten
years ago in New York and entered into a stipulation to
discontinue the New York matter with prejudice?

2. Did the court below err in failing to properly consider
[Mother’s] responses to [M.B.’s] Requests for Admissions and
the lack of responses to [M.B.’s] Supplemental Request for
Admissions, which established all of the elements of res judicata
and contained other admissions supporting the granting of
[M.B.’s] Motion to Dismiss?

1
“This Court accepts immediate appeals from orders directing or denying
genetic testing to determine paternity.” Barr v. Bartolo, 927 A.2d 635,
638-39 (Pa. Super. 2007), quoting Buccieri v. Campagna, 889 A.2d 1220,
1220 n.1 (Pa. Super. 2005).

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3. Did the [trial c]ourt err in improperly expanding the scope of
the June 10, 2015 hearing by essentially conducting a hearing on
the overall issue of the child’s paternity instead of and prior to
disposing of [M.B.’s] Motion to Dismiss – namely, the application
of res judicata and full faith and credit?

4. Did the [trial c]ourt err in admitting testimony in violation of
Pennsylvania Rule of Evidence 401-402 (relevance) and 403 (the
exclusion of relevant evidence that is unfairly prejudicial)?

5. Is the [trial c]ourt’s determination, as presented in the August
[10], 2015 Order and October 16, 2015 Opinion, against the
weight of the evidence?

6. Is the [trial c]ourt’s determination against public policy?

7. Did the [trial c]ourt err in ordering [M.B.] to submit to
paternity testing without properly and expressly determining
[M.B.’s] Motion to Dismiss and thus permitting the matter to
move forward according to the proper procedure of Pennsylvania
Rule of Civil Procedure 1910.15?

M.B.’s Brief at 5-6.

“[T]his Court will reverse the trial court’s decision regarding

preliminary objections only where there has been an error of law or an

abuse of discretion.’’ Gaboury v. Gaboury, 988 A.2d 672, 675 (Pa. Super.

2009), quoting Rambo v. Greene, 906 A.2d 1232, 1235 (Pa. Super. 2006);

Clemleddy Const., Inc. v. Yorston, 810 A.2d 693, 696 (Pa. Super. 2002).

“In ruling on whether preliminary objections should have been [sustained],

an appellate court must determine whether it is clear from doubt from all the

facts pleaded that the pleader will be unable to prove facts legally sufficient

to establish a right to relief.” R.M. Baxter ex rel. T.M., 624, 777 A.2d 446,

449 (Pa. 2001).

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Further, with regard to preliminary objections, this Court has

explained:

“When no issues of fact are raised, the court shall dispose of the
preliminary objections as a matter of law on the basis of the
pleadings alone.” Matter of D.L.S., 420 A.2d 625, 626 (Pa.
Super. 1980). Where preliminary objections raise issues of fact,
however, the Rules of Civil Procedure provide that “the court
shall consider evidence by depositions or otherwise.” Pa.R.C.P.
1028(c)(2); see also Devarmin v. Consol. Rail Corp., 931
A.2d 1, 14 (Pa. Super. 2007) (“[I]f an issue of fact is raised by
preliminary objections . . . the [trial] court may not reach a
determination based upon its view of the controverted facts, but
must resolve the dispute by receiving evidence thereon through
interrogatories, depositions or an evidentiary hearing”).

R.M. v. J.S., 20 A.3d 496, 508-509 (Pa. Super. 2011).

Our standard of review of a trial court’s order relating to paternity is

the same as that for child support: whether the trial court abused its

discretion or committed an error of law. D.M. v. V.B., 87 A.3d 323, 327

(Pa. Super. 2014). Further, in the context of a child support/paternity case,

we have stated:

An abuse of discretion exists if the trial court has overridden or
misapplied the law, or if there is insufficient evidence to sustain
the order. Moreover, resolution of factual issues is for the trial
court, and a reviewing court will not disturb the trial court’s
findings if they are supported by competent evidence. It is not
enough [for reversal] that we, if sitting as a trial court, may
have made a different finding.

Vargo v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007).

“[T]he interpretation and application of a statute is a question of law

that compels plenary review to determine whether the court committed an

error of law. As with all questions of law, the appellate standard of review is

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de novo and the appellate scope of review is plenary.” C.B. v. J.B., 65 A.3d

946, 951 (Pa. Super. 2013).

In his first three, related issues, M.B. contends that the trial court

erred or abused its discretion in failing to give res judicata effect, under the

Full Faith and Credit Clause of the United States Constitution, to the

Stipulation of Discontinuance filed in New York. He further asserts that the

trial court abused its discretion when it did not consider Mother’s failure to

meet her burden of overcoming the application of res judicata by a showing

that the New York Stipulation of Discontinuance was the result of fraud or

mutual mistake. M.B. argues that his preliminary objections established that

the New York Stipulation of Discontinuance barred Mother from pursuing him

in any further child support action, and that the trial court improperly

expanded the scope of the hearing on his motion to dismiss to the broader

issue of paternity.

We conclude that, under New York’s principles of res judicata, the New

York Stipulation of Discontinuance does not preclude Mother’s current action

for child support. M.B.’s claims to the contrary thus fail.2

As the Pennsylvania Supreme Court declared:

The United States Constitution requires that full faith and
credit “shall be given in each State . . . to the judicial

2
Although our reasoning differs from that provided by the trial court, this
Court “will affirm the trial court’s decision if the result is correct on any
ground, without regard to the grounds on which the trial court relied.”
Commonwealth v. Cassidy, 462 A.2d 270, 272 (Pa. Super. 1983).

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[p]roceedings of every other State.” U.S. Const. Art. IV,
§ 1. The Full Faith and Credit Clause thus precludes a party
from attacking collaterally a judgment of one state by
attempting to re-litigate the underlying dispute resolved by
that judgment in another state. Thus, full faith and credit
typically requires that a state give a judgment the same res
judicata effect the judgment would have been afforded in
the state in which it was rendered.

Wilkes ex rel. Mason v. Phoenix Home Life Mut. Ins. Co., 902 A.2d

366, 375-376 (Pa. 2006).

Moreover, as this Court held, the Full Faith and Credit Clause requires

that we employ New York’s res judicata doctrine to determine the preclusive

effect of the prior New York Stipulation of Discontinuance. Autochoice

Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 1214 (Pa.

Super. 2010) (“[w]e therefore look to Florida law to determine what res

judicata effect the [prior] Broward County[, Florida] court order would have

on [a]ppellant’s cause of action if brought in that jurisdiction”); see also

Barnes v. Buck, 346 A.2d 778, 781 (Pa. 1975) (“[t]he decree of the Ohio

court dismissing the petition to set aside the divorce decree, like the divorce

decree itself, is entitled to full faith and credit in the courts of Pennsylvania.

. . . That is, we must give it the same recognition and res judicata effect as

it would receive in the courts of Ohio”); but see Wilkes, 902 A.2d at 377

(perceiving a “fog of ambiguity” around the issue of whether, under the Full

Faith and Credit Clause, the home state must apply the res judicata doctrine

of the foreign state that entered the prior judgment or whether the home

state may simply apply its own res judicata doctrine to determine the

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preclusive effect of the foreign state judgment; the Wilkes Court refused to

decide the apparent conflict, but the Court did apply the foreign state’s res

judicata doctrine because that was how “the case [was] briefed to [it]”).

Pursuant to New York law:

Under the doctrine of res judicata, a party may not litigate a
claim where a judgment on the merits exists from a prior
action between the same parties involving the same subject
matter. The rule applies not only to claims actually litigated
but also to claims that could have been raised in the prior
litigation. The rationale underlying this principle is that a
party who has been given a full and fair opportunity to
litigate a claim should not be allowed to do so again.
Additionally, under New York’s transactional analysis
approach to res judicata, once a claim is brought to a final
conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if
based upon different theories or if seeking a different
remedy. Res judicata is designed to provide finality in the
resolution of disputes, recognizing that considerations of
judicial economy as well as fairness to the parties mandate,
at some point, an end to litigation.

In re Hunter, 827 N.E.2d 269, 274-275 (N.Y. 2005) (internal citations,

quotations, and corrections omitted).

Regarding a stipulated discontinuance, the New York Appellate Division

has held that “a stipulation of discontinuance with prejudice does carry res

judicata authority with respect to the same cause. However, the

language ‘with prejudice’ is narrowly interpreted when the interests

of justice, or the particular equities involved, warrant such an

approach.” Dolitsky’s Dry Cleaners, Inc. v. Y L Jericho Dry Cleaners,

Inc., 610 N.Y.S.2d 302, 303 (N.Y. App. Div. 1994) (internal citations and

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corrections omitted) (some internal citations omitted) (emphasis added);

see also Employers’ Fire Ins. Co. v. Brookner, 850 N.Y.S.2d 554, 556

(N.Y. App. Div. 2008) (“when the final determination relied upon for res

judicata effect is a stipulation of discontinuance, the language ‘with

prejudice’ is narrowly interpreted when the interests of justice, or the

particular equities involved, warrant such an approach”) (internal citations

omitted) (some internal quotations omitted); c.f. Stacey O v. Donald P,

525 N.Y.S.2d 385, 386 (N.Y. App. Div. 1988) (“[t]o determine whether

Family Court properly denied the motion to vacate the order dismissing the

second petition, we must first decide whether Family Court correctly gave

res judicata effect to the dismissal of the first petition. A court has

discretion to specify whether its order dismissing a claim is to have res

judicata effect. . . . Even where a dismissal is specifically ‘on the merits’ or

‘with prejudice’, the circumstances must warrant barring the litigant

from further pursuit of his claim in order for those phrases to be

given preclusive effect”) (internal citations omitted) (emphasis added).3

3
We note that, within her brief, Mother expressly argues that “New York
[would] not apply res judicata when doing so would result in an injustice.
The language ‘with prejudice’ should not be given a preclusive effect herein.”
Mother’s Brief at 19. Moreover, at the trial level, Mother argued that the
New York Stipulation of Discontinuance did not preclude her current action
for support because application of the doctrine of res judicata would “work
an injustice” and cause an inequity in this case. Mother’s Answer to
Preliminary Objections, 8/3/10, at 8-9.

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With respect to the case at bar, it is true that the prior, New York

action and the current, Pennsylvania action share an identity of the parties

(with Mother as the plaintiff/petitioner and M.B. as the

defendant/respondent) and share an identity of the subject matter (with

Mother claiming that M.B. is Child’s father and petitioning for child support

from M.B.). Moreover, the prior, New York action ended with Mother and

M.B. executing a “Stipulation of Discontinuance,” which declared:

IT IS HEREBY STIPULATED by and between the undersigned
that the present paternity proceeding and [Mother’s] cause
of action against [M.B.] for an order of filiation and an order
of support are hereby discontinued with prejudice as of the
date hereof.”

New York Stipulation of Discontinuance, 3/28/06, at 1 (emphasis in original).

Nevertheless, under New York law, “the language ‘with prejudice’ [in a

stipulation of discontinuance must be] narrowly interpreted when the

interests of justice, or the particular equities involved, warrant such an

approach.” Dolitsky’s Dry Cleaners, Inc., 610 N.Y.S.2d at 303 (internal

citations and corrections omitted) (some internal citations omitted). We

conclude that, in this case, the interests of justice and the equities require

that we narrowly construe the language “with prejudice” that is found in the

prior stipulation and hold that the prior stipulation neither bars the current

child support action nor precludes the trial court’s order that M.B. undergo

genetic testing. We will explain.

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At the time Mother and M.B. entered into the New York Stipulation of

Discontinuance, the New York rule regarding voluntary discontinuances

read:

Rule 3217. Voluntary discontinuance

(a) Without an order. Any party asserting a claim may
discontinue it without an order

1. by serving upon all parties to the action a notice of
discontinuance at any time before a responsive pleading
is served or within twenty days after service of the
pleading asserting the claim, whichever is earlier, and
filing the notice with proof of service with the clerk of
the court; or

2. by filing with the clerk of the court before the case
has been submitted to the court or jury a stipulation in
writing signed by the attorneys of record for all parties,
provided that no party is an infant, incompetent person
for whom a committee has been appointed or
conservatee and no person not a party has an interest in
the subject matter of the action; or

3. by filing with the clerk of the court before the case
has been submitted to the court or jury a certificate or
notice of discontinuance stating that any parcel of land
which is the subject matter of the action is to be
excluded pursuant to title three of article eleven of the
real property tax law.

(b) By order of court. Except as provided in subdivision
(a), an action shall not be discontinued by a party asserting
a claim except upon order of the court and upon terms and
conditions, as the court deems proper. After the cause has
been submitted to the court or jury to determine the facts
the court may not order an action discontinued except upon
the stipulation of all parties appearing in the action.

(c) Effect of discontinuance. Unless otherwise stated in
the notice, stipulation or order of discontinuance, the
discontinuance is without prejudice, except that a

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discontinuance by means of notice operates as an
adjudication on the merits if the party has once before
discontinued by any method an action based on or including
the same cause of action in a court of any state or the
United States.

(d) All notices, stipulations, or certificates pursuant to this
rule shall be filed with the county clerk by the defendant.

N.Y. C.P.L.R. 3217 (effective July 14, 2003 to May 6, 2009).4

With respect to the prior, New York action, the action: was voluntarily

discontinued over one year after “service of the pleading asserting the claim”

(thus, Rule 3217(a)(1) could not apply); did not involve a parcel of land

(thus, Rule 3217(a)(3) could not apply); and, was not discontinued via court

order (thus, Rule 3217(b) could not apply). Therefore, the only possible way

to construe the voluntary discontinuance of the prior, New York action was –

as the name of the filing suggests – as a “stipulation of discontinuance”

under Rule 3217(a)(2). However, Rule 3217(a)(2) specifically declares:

“Any party asserting a claim may discontinue it without an
order . . . by filing with the clerk of the court before the
case has been submitted to the court or jury a stipulation in
writing signed by the attorneys of record for all parties,
provided that no party is an infant, incompetent person for
whom a committee has been appointed or conservatee and
no person not a party has an interest in the subject
matter of the action.”

4
Rule 3217 has since been amended. However, the current rule is, in all
relevant respects, identical to the rule that existed at the time Mother and
M.B. entered into their stipulation. Compare N.Y. C.P.L.R. 3217 (effective
July 14, 2003 to May 6, 2009) to N.Y. C.P.L.R. 3217 (effective July 1, 2012).

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N.Y. C.P.L.R. 3217(a)(2) (emphasis added).5 Moreover, as Rule 3217(b)

makes clear, “Except as provided in subdivision (a), an action shall

not be discontinued by a party asserting a claim except upon order

of the court and upon terms and conditions, as the court deems

proper.” N.Y. C.P.L.R. 3217(b) (emphasis added).

Child was born in April 2005 and Child was never made a party to

Mother’s New York Child Support/Paternity action.6 Yet, the “Stipulation of

Discontinuance” in the New York action was signed by Mother and M.B. on

March 28, 2006 – and the stipulation purported to “discontinue with

prejudice” Mother’s “paternity proceeding and [] cause of action against

5
We note that the parties signed the written stipulation; however, contrary
to the requirements of Rule 3217(a)(2), “the attorneys of record” did not
sign the stipulation. See N.Y. C.P.L.R. 3217(a)(2). Nevertheless, as the
New York Appellate Division has held, this particular failing constitutes “a
mere irregularity which does not render the stipulation invalid.” Levy v.
Levy, 135 N.Y.S.2d 95, 95 (N.Y. App. Div. 1954).
6
New York Family Court Act § 522 declares:

Proceedings to establish the paternity of the child and to
compel support under this article may be commenced by
the mother, whether a minor or not, by a person alleging to
be the father, whether a minor or not, by the child or child's
guardian or other person standing in a parental relation or
being the next of kin of the child, or by any authorized
representative of an incorporated society doing charitable or
philanthropic work, or if the mother or child is or is likely to
become a public charge on a county, city or town, by a
public welfare official of the county, city or town where the
mother resides or the child is found.

N.Y. Family Court Act § 522.

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[M.B.] for an order of filiation and an order of [child] support.” New York

Stipulation of Discontinuance, 3/28/06, at 1 (emphasis omitted). Obviously,

however, Child had a substantial “interest in the subject matter of the

action” that Mother and M.B. purportedly discontinued – and in the three

matters that were the subject of the Stipulation of Discontinuance. As such,

under the plain terms of Rule 3217, Mother and M.B were not permitted to

discontinue Mother’s New York Child Support/Paternity action by way of

stipulation. Rather, the only way Mother’s action could have been

voluntarily discontinued was by way of court order “and upon [the] terms

and conditions, as the court deems proper.” N.Y. C.P.L.R. 3217(b).7

Rule 3217 attempted to protect Child’s interests by mandating that

Mother and M.B. could not voluntarily discontinue the prior New York Child

Support/Paternity action by way of stipulation – and that the action could

have only been voluntarily discontinued by “order of the court and upon

[the] terms and conditions, as the court deems proper.” N.Y. C.P.L.R. 3217.

Mother and M.B. flouted this rule and discontinued the prior New York Child

Support/Paternity action without making Child a party to the proceedings,

7
See, e.g., A.F. v. S.F., 836 N.Y.S.2d 496, 2007 WL 685847 (N.Y. Sup. Ct.,
N.Y Cty. 2007) (unpublished memorandum) (denying the petitioner’s
unopposed motion to discontinue his action for child custody, as “[t]he
welfare of the three [children] would [] be compromised by a discontinuance
of the instant action”); see also Julie J. v. Edwin A., 86 Misc.2d 882, 883
(Fam. Ct., N.Y. Cty. 1976) (denying mother’s motion to discontinue her
paternity action because “the infant child and the public hav[e] a substantial
interest in these proceedings”).

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without Child being represented by counsel, and without the necessary court

order to ensure the protection of Child’s interests. As such, we conclude

that, under New York law, “the interests of justice [and] the particular

equities involved” mandate that we “narrowly interpret[]” the language “with

prejudice” in the New York Stipulation of Discontinuance. Dolitsky’s Dry

Cleaners, Inc., 610 N.Y.S.2d at 303.

In keeping with this “narrow[] interpretation,” we conclude that the

prior, New York Stipulation of Discontinuance would certainly not preclude a

Pennsylvania child support action that was instituted by Child or by Mother

“on behalf of [Child]”8 – given that the New York Stipulation of

Discontinuance was entered into against the express requirements of Rule

3217 and, as such, left Child’s interests unprotected. Further, we conclude

that it would be an untoward elevation of form over substance to hold that

res judicata barred Mother’s current action for child support, or her

automatic right to have M.B. genetically tested to determine paternity. This

is especially so, given that res judicata would not bar an identical action that

8
In relevant part, Pennsylvania Rule of Civil Procedure 1910.3 declares:

(a) An action [for support] may be brought
(1) by a person, including a minor parent or a minor
spouse, to whom a duty of support is owing, or

(2) on behalf of a minor child by a person having
custody of the child, without appointment as guardian
ad litem. . . .

Pa.R.C.P. 1910.3.

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was instituted by Child or by Mother “on behalf of [Child]” and given that,

even though Mother instituted the current action, her claim of child support

and the concomitant paternity test are both done “to serve the best interests

of the child[].” R.K.J. v. S.P.K., 77 A.3d 33, 37 (Pa. Super. 2013) (“[t]he

principal goal in child support matters is to serve the best interests of the

children through the provision of reasonable expenses”); Minnich, 506 A.2d

at 882 (“[t]he child born out of wedlock . . . has an interest in knowing his

father and in having two parents to provide care for him”).9

9
Moreover, in Wieland v. Wieland, 948 A.2d 863, 870 (Pa. Super. 2008),
we stated:

DNA paternity testing, with its pinpoint accuracy, has
posed more squarely than ever before a dilemma in
paternity testing. Before the advent of DNA testing, the
determination of paternity could not be as accurately
established as it can today. Because the truth can be so
reliably revealed, the policy question as to whether to
expose the truth or whether to bypass the truth for some
important family or societal reasons has taken on added
meaning. While we recognize that the right to paternity
testing is not absolute and there may be strong family or
societal reasons to deny paternity testing, such testing
should be favored. The establishment of a parent-child
relationship is important to both parent and child. A
father and his child have the right to establish a kinship
relationship and the child has a right to expect both
financial and emotional support from his or her father.
Furthermore, a child’s biological history may be essential
to his or her future health, and the child’s cultural history
may be important to his or her personal well[-]being.

Wieland, 948 A.2d at 870-71.

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Therefore, we conclude that the prior New York Stipulation of

Discontinuance does not bar Mother’s current complaint for child support, or

her automatic right to have the disputing M.B. genetically tested to

determine paternity. M.B.’s claims to the contrary fail.

Given this Court’s reasoning, M.B.’s fourth claim (wherein he argues

that the trial court improperly admitted testimony that was irrelevant to the

res judicata effect of the Stipulation of Discontinuance) and fifth claim

(wherein he argues that the trial court’s ruling was against the weight of the

evidence) will not be analyzed, as our decision was not based upon the

alleged improper testimony or upon the evidence admitted during the

hearing. Rather, our decision was based upon the legal effect of the prior,

New York Stipulation of Discontinuance.

Next, we address M.B.’s contention in his sixth issue that the trial

court’s order is against the public policy of Pennsylvania. He limits his

arguments to the application of the doctrine of res judicata and the effect of

that doctrine under public policy considerations. As M.B. argues:

“[Mother’s] efforts to relitigate this matter fly in the face of the very

principles under which our judicial system functions. The parties resolved

the issue of the paternity of the Child in New York ten years ago via a

decision to end all litigation, with prejudicial effect.” M.B.’s Brief at 49.

This claim fails. As this Court explained above, because Mother and

M.B. improperly entered into the prior Stipulation of Discontinuance – and,

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in so doing, violated a rule that was intended to protect Child – the New York

courts would not give the stipulation res judicata effect as to Child.

Therefore, we refuse to conclude that Mother’s current action for Child’s

support (and the concomitant requirement that M.B. be genetically tested for

a determination as to his paternity of Child) is barred by the improper

Stipulation of Discontinuance. M.B.’s public policy argument thus fails.

Finally, in his seventh issue, M.B. argues that the trial court failed to

follow the proper procedure set forth in a child support action, citing

Pa.R.C.P. 1910.11 and/or 1910.12, regarding an office conference before a

hearing officer at the initiation of a child support action. He urges that,

under Pa.R.C.P. 1910.15, the conference officer enters an order directing the

parties to submit to genetic testing if paternity cannot be established at the

conference level. M.B. complains that the trial court improperly directed him

to submit to genetic testing without first directing the matter to proceed

through the office conference procedure. Accordingly, he seeks for us to

vacate the trial court’s order.

Mother’s complaint for child support/paternity raised a number of

controverted factual allegations, and the trial court held a hearing to assist it

in reaching its factual determinations on M.B.’s motion to

dismiss/preliminary objections. The trial court also directed genetic testing

to assist it in rendering a factual determination.

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In R.M., this Court instructed that, if an issue of fact is raised by

preliminary objections, the trial court may not reach a determination based

upon its view of the controverted facts, but must resolve the dispute by

receiving evidence thereon through interrogatories, depositions or an

evidentiary hearing. R.M., 20 A.3d at 508-509

M.B. fails to cite any case authority to support his contention that the

trial court must wait for the hearing officer’s office conference and direction

to the parties before the court may order genetic testing, especially where

the putative father has denied paternity, and requested the court to dismiss

the support/paternity action based on preliminary objections. Thus, we find

that he has waived his contention. See Chapman-Rolle v. Rolle, 893 A.2d

770, 774 (Pa. Super. 2006) (stating, “[i]t is well settled that a failure to

argue and to cite any authority supporting any argument constitutes a

waiver of issues on appeal,” quoting Jones v. Jones, 878 A.2d 86, 90 (Pa.

Super. 2005)).

Nevertheless, we would find that the trial court had authority to direct

M.B. to submit to the genetic testing. The Uniform Act on Blood Tests to

Determine Paternity, 23 Pa.C.S.A. § 5104, provides as follows, in pertinent

part:

(a) Short title of section.--This section shall be known and may
be cited as the Uniform Act on Blood Tests to Determine
Paternity.

(b) Scope of section.—

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(1) Civil matters.--This section shall apply to all civil
matters.

...

(c) Authority for test.--In any matter subject to this section in
which paternity, parentage or identity of a child is a relevant
fact, 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 made at a time so as not
to delay the proceedings unduly, shall order the mother, child
and alleged father to submit to blood tests. If any party refuses
to submit to the tests, the court may resolve the question of
paternity, parentage or identity of a child against the party or
enforce its order if the rights of others and the interests of
justice so require.

...

(f) Effect of test results.--If the court finds that the conclusions
of all 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, 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.

(g) Effect on presumption of legitimacy.--The presumption of
legitimacy of a child born during wedlock is overcome if the court
finds that the conclusions of all the experts as disclosed by the
evidence based upon the tests show that the husband is not the
father of the child.

23 Pa.C.S.A. § 5104.

Pennsylvania Rule of Civil Procedure 1910.15(b)(1), regarding child

support and paternity, provides that, if a defendant in a paternity case

appears but does not execute an acknowledgment of paternity at the office

conference, the court shall enter an order directing the parties to appear for

genetic testing. The order must advise the defendant that his failure to

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appear for the testing will result in entry of an order finding that he is the

father of the child. The order must also advise the plaintiff that her failure

to appear for testing may result in sanctions, including entry of an order

dismissing the paternity action without prejudice. See Pa.R.C.P.

1910.15(b)(1).

As M.B. filed the motion to dismiss/preliminary objections denying

paternity with the court, we find that the trial court had authority to order

M.B. to submit to paternity testing without awaiting M.B.’s refusal to sign an

acknowledgment of paternity at a hearing officer’s conference. The trial

court stated that the goal of finality that supports res judicata can best be

served under these unusual circumstances by the genetic testing order, and

that Mother’s counsel had represented to the court that a laboratory finding

adverse to Mother’s claim will resolve the dispute over paternity. Trial Court

Opinion, 10/16/15, at 5. The trial court added that finality and closure

would be best achieved by reaching the merits of Mother’s claim. Id. This

Court agrees. Accordingly, we affirm the order of the trial court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/28/2016

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