Commonwealth Ex Rel. Gonzalez v. Andreas

SPAETH, Judge,

concurring:

I agree that appellant must support the child. However, my reason for this conclusion is entirely different from the majority’s.

I

On October 22, 1971, appellant was a party to an Agreement for Order of Support; the order, entered on October 29, 1971, directed appellant to make weekly payments “for and toward the support of his wife and child.” Implicit in that order was an adjudication that appellant is the father of the child. In effect, therefore, appellant now seeks to relitigate the issue of paternity.

This court, confronted with a similar situation in Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964), held: “In the absence of an appeal from [the original support] order, the fact of appellant’s paternity . . . became established as a matter of law. A relevant fact necessarily determined as a prerequisite to the entry of an original support order may not, under the doctrine of res judicata, be chal*315lenged or put at issue in any subsequent proceeding.” Id. at 182, 199 A.2d at 491. The Supreme Court, citing Nedzwecky, recently applied the doctrine of collateral estoppel (which would appear to be a more correct term than our “res judicata”) in a similar case. In re: Adoption of Robert Dale Young, 469 Pa. 141, 364 A.2d 1307, 1313 (1976). Under these cases, appellant is collaterally estopped from now raising the issue of paternity.

II

Having thus agreed with the majority’s result, I should perhaps subside. I believe, however, that the doctrine of equitable estoppel has been incorrectly invoked by the majority, and that it was incorrectly invoked in Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. 24, 257 A.2d 269 (1969), and Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963), allocatur refused. In my opinion, these cases should be overruled. Moreover, whether I am correct in this opinion is not, it seems to me, an academic question. Some day we shall have a case involving a father who attempts to challenge the paternity of a child before a support order has been entered. In such a case the majority would, I assume, again find the father equitably estopped. Thus the legal theory we rely on in the present case will set precedent; and I fear that the majority’s reasoning, when added to the precedents of Hall and Weston, will render those cases despite their incorrect use of equitable estoppel, immovable.

A

Equitable “estoppel arises when one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is *316permitted to deny the existence of such facts. In this situation, the person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, aver a different or contrary state of facts as existing at the same time, or deny or repudiate his acts, conduct, or statements. . . .”

Northwestern National Bank v. Commonwealth, 345 Pa. 192, 196-97, 27 A.2d 20, 23 (1942) (citations omitted).

It is evident from this statement that the doctrine of equitable estoppel was devised to reach a wrongdoer— someone who “intentionally or through culpable negligence” has represented that something was true when it was not.

Here, appellant’s representation was that he was the father of the child. This was a misrepresentation, but not a wrongdoer’s ,* appellant believed he was the father.

The majority says, however, that appellant should have known before he married appellee that he was not the father of the child. Majority opinion at p. 313. I suggest that the majority’s argument is hardly persuasive. As the majority itself notes, “in very few instances will a married woman reveal to her husband the true state of affairs.” Id. Appellant and appellee apparently lived together from the time they first met; the fact that they did not decide to marry until after approximately thirteen months does not warrant the majority’s conclusion that appellant should have suspected that appellee was not faithful to him. Nor should he have suspected her simply because she had had prior illegitimate children; to say he should have is to insist that he think the worst of a woman with whom he was maintaining a close relationship. In my opinion the majority is arguing by hindsight.

Assume, however, that the majority is right, and that appellant should have known he was not the father of the child. Assume, too, that a party may be equitably es-*317topped when he did not know but only should have known that the fact he was representing — here, his fatherhood — was not true.1 Still appellant may not be equitably estopped. The party demanding that he support the child is appellee; she is the one invoking the doctrine of equitable estoppel. However, appellee has no standing to invoke the doctrine.

An estoppel can be claimed only by one who has acted in ignorance of the true state of facts . . . , and who was without suitable means of informing himself of their existence . . . . If he had notice of the facts, and was not misled to his disadvantage there can be no estoppel.
Tustin v. Philadelphia & Reading Coal & Iron Co., 250 Pa. 425, 436, 95 A. 595, 599 (1915) (citations omitted).

Here, appellee knew better than appellant who was, or at least who might be, the father of the child. Appellant did not induce his wife to believe that the child was his; if anything, the opposite was the case. “Estoppels are used in law as a means to prevent fraud, and never to become its instruments.” Norman v. World Wide Distributors, Inc., 202 Pa.Super. 53, 59, 195 A.2d 115, 118 (1963).

The majority seems to suggest that it is the child who has been misled to her detriment. Majority opinion at p. 312. This suggestion, however, only emphasizes the inappropriateness of the doctrine of equitable estoppel in this setting. Children are not legally competent to make changes in position with legal consequences. “A person is not sui juris at any age less than 21 full years, regardless of his physique, mentality, education, experience or accomplishments.” In re Pincus’ Estate, 378 Pa. 102, 109-110, 105 A.2d 82, 86 (1954). Thus, this child has *318not changed her position in reliance on appellant’s alleged misrepresentations. She did not decide to emigrate to the United States in reliance on appellant’s averments on immigration documents, or decide to entrust herself to him as a father, rather than to some other man. Her mother made these decisions for her, and again, the mother’s knowledge of the true facts precludes the use of the doctrine of equitable estoppel.

B

I recognize that my position would require that we overrule Hall and Weston,2 I further recognize that “[t]he doctrine of stare decisis ... is among the most important principles of good government. . . . Rules of law, carefully considered and definitely established, should not be lightly discarded.” Commonwealth v. Poundstone, 200 Pa.Super. 416, 420, 188 A.2d 830, 832 (1963). Nevertheless, our Supreme Court has not hesi*319tated to heed the observation of former Chief Justice von Moschzisker:

[I]f, after thorough examination and deep thought a prior judicial decision seems wrong in principle or manifestly out of accord with modem conditions of life, it should not be followed as a controlling precedent.
von Moschzisker, Stare Decisis in Courts of Last Resort, 37 Harvard L.Rev. 409, 414 (1924).

(I know my readers will smile at the implied suggestion that my opinion here is the product of “thorough examination and deep thought.” Vanity, vanity, all is vanity!) And see, the discussion of stare decisis in Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 603-06, 305 A.2d 877, 886-88 (1973). If, as in Ayala, established rules and principles may be overruled because a court is persuaded that they are “out of accord with modern conditions of life,” it seems even more appropriate to overrule decisional law that is founded on flawed reasoning, as I suggest Hall and Weston were. “[T]he courts should not perpetuate error solely for the reason that a previous decision although erroneous, has been rendered on a given question.” Olin Mathieson C. Corp. v. White C. Stores, 414 Pa. 95, 100, 199 A.2d 266, 268 (1964). To persist in applying the doctrine of equitable estoppel in cases like the present case is to perpetuate our former error; and “the doctrine of stare decisis is not a vehicle for perpetuating error . . . ” Ayala v. Philadelphia Board of Public Education, supra at 606, 305 A.2d at 888. I should hope that we subscribe to the statement that “[t]his Court, unlike the House of Lords, has from the beginning rejected a doctrine of disability at self-correction.” Helvering v. Hallock, 309 U.S. 106, 121, 60 S.Ct. 444, 452, 84 L.Ed. 604 (1940) (Mr. Justice Frankfurter).

*320C

It might seem that the doctrine of laches would be an appropriate doctrine by which to decide this case. Since that doctrine stresses the factor of undue delay rather than that of misrepresentation to an ignorant and innocent party, use of it would not be precluded by appellee’s knowledge. However, it is axiomatic that “lapse of time, standing alone, is not sufficient to establish laches. A necessary, indeed an indispensible, ingredient of laches is prejudice to the party who asserts it.” Pennsylvania Company for Banking and Trusts v. Philadelphia, 167 Pa.Super. 637, 641, 76 A.2d 443, 444 (1950). Here, appellee cannot claim prejudice. If anything, appellant’s delay in questioning the child’s paternity worked to appellee’s advantage; it extended the period during which she could insist that it was appellant’s responsibility to support his child, rather than her own responsibility.

D

Despite my disagreement with the majority’s reasoning, I am sympathetic to its notion that the child is the one who has been harmed. I quite agree that a supposed parent should not indefinitely be permitted to upset a child’s settled sense of family. The need for some time limitation is especially clear in view of the common setting for challenges of this kind — separation and divorce proceedings. Such proceedings are themselves a serious disruption of a child's world; after a certain time has passed we should not permit the added disruption of a paternity challenge.

The ability to discern the need for a remedy, however, does not necessarily imply the power to grant it. Courts have granted many remedies by expanding the common law. Examples might be cited, perhaps especially from the law of torts but also from equity and the law of crimes (before it was codified). Such expansion, how*321ever, may be accomplished only if the court is able to support it by the orderly development of its own doctrines. Where, as here, a remedy lies beyond the reach of these doctrines, it must be granted, if at all, by the legislature.

With respect to the present case, the legislature need not go far for help; the Uniform Parentage Act (U.L.A.) § 6(a) (2) (Supp.1976), which the majority cites, provides a useful guide. Under that Act, either as drafted (“within a reasonable time after obtaining knowledge of relevant facts, but in no event later than [five] years after the child’s birth”) or as adopted in California (omits “but in no event later than [five] years after the child’s birth”), appellant would be barred. In the first alternative he brought his action beyond the five year period; in the second he brought it at the very least more than four years after “obtaining knowledge of relevant facts.”3 It seems to me that such legislation would be beneficial. Whether that is so, however, is for the legislature to decide.

. See GAF Corp. v. Amchem Products, Inc., 399 F.Supp. 647 (E.D.Pa.1975). The correctness of the assumption is clearer in cases involving laches. See Barnes & Tucker Co. v. Bird Coal Co., 334 Pa. 324, 5 A.2d 146 (1939).

. The Supreme Court has recently cited both Hall and Weston with approval in In re: Adoption of Robert Dale Young, 469 Pa. 141, 364 A.2d 1307 (1976). There, a mother sought to terminate her ex-husband’s parental rights by asserting that he was not the true father of a child bom during their marriage. The Court held that she was estopped from so asserting. In doing so the Court expressed — in dictum only — a rule that would support the majority’s use of equitable estoppel in the present case:

Were the situation reversed and appellee [the ex-husband] to answer today in a proceeding against him seeking to enforce support payments for the minor child under the 1971 separation agreement, there is no doubt that the doctrine of equitable estoppel would prevent his belated questioning of paternity.
Id.

With respect, I can only hope that the Court will reconsider this dictum when the question is squarely put before it. In Young the doctrine of equitable estoppel could be applied without distorting it, for there it was the mother — one with the means of knowledge whether her ex-husband was the child’s father — who misrepresented the trae facts to him; and he relied on her misrepresentation. When the parties are reversed, as here, equitable estoppel becomes inapplicable, as I have already discussed.

I also wish to note that I am not the first member of our court to question the use of equitable estoppel in cases like this one. Judge HOFFMAN did so ably in his dissenting opinion in Commonwealth ex rel. Hall v. Hall, 215 Pa.Super. at 33-35, 257 A.2d at 272-274.

. I have already said I do not think it clear that appellant learned relevant facts at or around the time of the child’s birth. Ante at p. 318, However, appellee and her child came to the United States on July 3, 1970, and “[o]nce in the United States, the appellee made certain statements to the appellant and his relatives, which led the appellant to suspect that he was not the natural father of Christine Dawn.” Appellant’s brief at 2-3. Thus the summer of 1970 may be taken as the time when appellant had knowledge of relevant facts. From that time I count a delay of more than four years, since I agree with the majority that appellant’s claim of financial difficulties cannot excuse his failure to bring the action before February 26, 1975.