Mastromatteo v. Harkins

BECK, Judge,

concurring.

The majority’s analysis and disposition of this matter are clearly correct and I join therein.

I write separately simply to underscore the distinctions between the issue posed here and that posed in Koleski v. Park, 363 Pa.Super. 22, 525 A.2d 405 (1987), a decision that I authored.1

In Koleski, we considered the constitutional implications of ordering a party to a paternity action to undergo a duplicate blood test. We concluded that in such a situation, the party whose blood was sought to be extracted a second time for the performance of the selfsame test had the right to a determination that the initial test was defective. We also held that this determination was to be made at a hearing at which expert testimony relative to the alleged defective test was presented. Id., 363 Pa.Super. at 28-34, 525 A.2d at 408-10. We reached these conclusions after consideration of the protections afforded by the Fourth Amendment and the Due Process Clause of *340the United States Constitution. In analyzing these protections, we balanced the interests of all parties and the Commonwealth in an accurate paternity determination against the bodily integrity of the person whose blood was sought and the possibility of harassment through demands for duplicate blood tests.

In contrast, in the case sub judice we are not reviewing an order requiring a duplicate blood test. Rather, the issue here is whether a second blood extraction should have been ordered to permit the performance of a new and completely different genetic paternity test which, because of its high degree of accuracy, would substantially aid in the determination of paternity. Under these very different facts, our analysis logically must differ from that pursued in Koleski. As the majority notes, we have here no hint of harassment. Rather, we perceive only that the request for genetic testing resulted from the desire to amass new and highly reliable scientific evidence of paternity to be used at the retrial of this matter. Clearly, the interests of all concerned in an accurate paternity determination is well served by permitting such evidence to be obtained and admitted at the second trial.

Moreover, the Due Process analysis pursued in Koleski is simply inapposite to this matter. In Koleski, we required a hearing at which expert testimony would be presented prior to an order requiring a second blood test. We required a hearing and expert testimony because we found that such was necessary for the accurate resolution of the central factual issue, i.e. defect in the first test. Here, on the other hand, no such finding need be made since the request for genetic testing in no way depends upon an alleged defect in the first test. In the circumstances of this case, the due process afforded the parties through the process of briefing and argument on the legal question of whether the genetic testing was to be allowed was clearly sufficient.

Therefore, I join in the majority’s determination that the trial court should be reversed.

. In a dissent joined by no other member of this panel, Judge Tamilia attacks this author's concurrence. He states that the author does not know and cannot know how the members of the Koleski panel would have voted in the instant case. He then concludes that this fact somehow renders this author's view on the subject of the proper interpretation of Koleski inaccurate. He further accuses this writer of undermining the integrity of the opinions of this court.

The dissent’s observations and reasoning are facially specious. First, this concurrence states the view of the author hereof and does not even purport to be a statement of the view of anyone else. Even the most cursory reading of this concurrence makes this fact obvious. Second, the analysis of Koleski and its proper application to the case at bar that is set forth in this concurrence is a logical and honest statement of this writer’s view and is agreed to by all members of the en banc panel with the exception of Judge Tamilia. It in no way undermines the integrity of this court’s opinions and, in fact, is completely consistent both with this court’s prior opinions and with the majority opinion in this very case.