concurring:
I concur in the result as I believe that in citing to Justice Zappala’s Concurring Opinion in Brinkley v. King, 549 Pa. 241, 701 A.2d 176 (1997), the majority has adhered to the principle that has guided us from time imme-morium. I would hesitate to find that the lead Opinion by Chief Justice Flaherty has in anyway seriously changed the law as clearly enunciated by John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990).
It is absolutely certain that the Supreme Court did not abrogate the underlying precepts of the presumption of legitimacy (non-access and impotence) and it did not substitute an enlarged basis for rebutting the presumption. To assure that this was not the conclusion to be drawn from its decision, the majority restated the precepts developed in John M., supra (a child born to a married couple will be presumed to be the issue of the husband and it may be overcome only by establishing non-access or impotency; the interest of a third party pales in comparison to the overriding interest of the presumed father, the marital institution and the interest of the Commonwealth in the family unit). Likewise, it reaffirmed the teaching of Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993) (when mother sues a third party for support, a court may order blood tests to determine paternity only when the presumption of paternity has been overcome which is by proof of facts establishing non-access or impotency). To fix as the embodiment of the law, the continuing viability of the presumption, the Supreme Court in Brinkley went on to declare:
These cases set forth the fundamentals of the law of presumptive paternity: generally, a child conceived or bom during the marriage is presumed to be the child of the marriage; this presumption is one of the strongest presumptions of the law of Pennsylvania; and the presumption may be overcome by clear and convincing evidence either that the presumptive father had no access to the mother or the presumptive father was physically incapable of procreation at the time of conception. However, the presumption is irrebuttable when a third party seeks to assert his own paternity as against the husband in an intact marriage. John M., 524 Pa. at 323, 571 A.2d at 1388-89.
Brinkley, supra at -, 701 A.2d at 179 (footnote omitted). Moreover, at footnote nine, the Court rejected any application, as suggested by the Superior Court, for enlarging the means beyond those determined in Paula T. to overcome the presumption.1
*685The caution which must be used in applying Brinkley to extend the guiding principles applied to overcoming the presumption of paternity is reinforced by its limited prece-dential value. We note there are four separate Opinions in Brinkley, none of which commanded a majority of the Court’s six members. See Commonwealth v. Minor, 436 Pa.Super. 35, 647 A.2d 229 (1994) (non-majority decisions of state Supreme Court are not binding on lower court).
I believe a two-part test is indicated by Brinkley and the great body of cases that have reviewed this issue since Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). First, the presumption of paternity prevails in the absence of proof of non-access and/or impotency; second, if the family remains intact up to and beyond the birth of the child, despite evidence that rebuts the presumption of paternity, estoppel will apply; and in either case, blood tests are irrelevant.
This case clearly falls into the classical case of non-access by being beyond the seas as first enunciated by Lord Manfield’s rule. I therefore agree with the majority’s decision to reverse the Order of the trial court and remand for further proceedings.
. "We decline to accept Superior Court’s suggestion that we expand the ways in which one can rebut the presumption of paternity. Superior Court’s proposed additional factors to rebut the presumption, such as whether the putative father established a relationship with the child, are appropriate in an estoppel context, but not in a presumption of paternity context. The presumption of paternity continues to be rebutted, if at *685all, by evidence related to biology: there was no access or the presumptive father was incapable of procreation.” Brinkley v. King, - Pa.-, n. 9, 701 A.2d 176, 181 n. 9 (1997).