dissenting:
I join so much of the majority’s opinion which finds that Donna K. Christianson had the burden of demonstrating that the doctrine of estoppel should not apply before she is permitted to proceed with her complaint for support against alleged putative father Robert M. Ely. I agree with the holding of the majority that, when a parent is estopped from denying paternity and the presumption of legitimacy has not been rebutted, paternity is not a relevant fact.
The only issue brought before this court on this appeal is whether an assistant district attorney, acting on behalf of an alleged complainant, may compel any individual to submit to blood tests pursuant to the Uniform Act on Blood Tests to Determine Paternity, where paternity has not been established as a relevant fact. The panel is in agreement that such compulsion is entirely inappropriate. The majority would remand for further evidence to be presented to the court as to “the actual relationship of the presumptive father and natural mother and as to whether the doctrine of estoppel applies.” Majority opinion, page 966. Since I believe the introduction of additional evidence on this issue is unnecessary to our disposition of this appeal, I must respectfully dissent.
After the Snyder County assistant district attorney had filed the Complaint for Support against Robert M. Ely in *411this case on July 13, 1988, the court issued its certification and order for transmission to Union County. The Union County court ordered a support conference. Ely filed preliminary objections on August 12, 1988, alleging that a support complaint had been filed in Snyder County on February 27, 1987 against Bruce Christianson, the husband of the complainant, Donna K. Christianson. That earlier complaint sought support for three minor children, including Tenaya Beth Christianson, alleging Bruce Christianson to be the natural father of all three and further alleging the cohabitation between natural father and mother at all times material to a determination of paternity.
Ely further alleged, by way of preliminary objection, that there had been no proceeding concluded by the complainant seeking support from the natural father, Bruce Christian-son, her husband at the time of both the birth and conception of Tenaya Beth, Bruce Christianson being the presumptive father of Tenaya Beth Christianson.
When oral argument was held on the preliminary objections on November 4, 1988, the Union County assistant district attorney conceded that he had no meritorious response to Ely’s preliminary objections. The court took judicial notice of the Snyder County proceedings which did not include any disposition of the claim for support for Tenaya Beth. The Union County court then stayed all proceedings pending disposition of the support claim for Tenaya asserted against Bruce Christianson in Snyder County.
A thorough review of the entire record establishes that the next pleading or action taken in this case following the stay of proceedings is the Motion for Blood Tests presented ex parte on February 21, 1989. The motion is acknowledged by the assistant district attorney who presented the motion, Michael T. Hudock. Paragraph 6 of the Motion alleges:
6. That the Plaintiff has reported that Bruce N. Christianson is not the father of the child and that Robert M. Ely is the father of the child.
*412The motion contains no reference to the order entered November 9, 1988 staying all proceedings or the finding of the court requiring disposition of the Snyder County claim before any complaint could be fairly pursued against any other alleged father, including Robert M. Ely. If counsel was aware of the material facts regarding the Snyder County action, indexed at No. 36,1987, those facts were not included in the Motion for Blood Tests presented on February 21, 1989. The order entered the next day by the court is also silent as to the status of the Snyder County proceedings as they relate to Bruce Christianson’s obligation for support.
Here, the trial court recognized on November 9, 1988 that it was improper to proceed against a putative father when there remained outstanding a support action in another county claiming support from the presumptive father, with whom the complainant had been living during the period of conception and birth. From the record, the same court, on February 22, 1989, sought to compel a third person, Robert Ely, to submit to blood testing on the ex parte request of the assistant district attorney, based on the hearsay statements of the complainant, and with no judicial ruling on record that Bruce Christianson was not the father.
Our responsibility on this appeal is not to determine who might be the father of Tenaya Beth Christianson. I am satisfied that paternity is not a relevant fact where the presumption of legitimacy has not been rebutted. If, as is suggested in the Application for Stay or Injunction Pending Appeal filed by Ely in the trial court on March 20, 1989, the Snyder County proceeding against the natural father was withdrawn ex parte by the Snyder County district attorney’s office, then the presumption of the natural father’s paternity has clearly not been rebutted, and paternity remains something other than a relevant fact in this proceeding.
The majority would permit the complainant to return to the Union County court to litigate a matter that appears to have been withdrawn from the consideration of the Snyder *413County court by the complainant. It seems that the majority would seek to have the Union County court consider whether there is substantial evidence to the effect that the father has denied paternity and refused to accept responsibility, even though the father is not a party to the Union County proceeding so far as the record would disclose. The only allegation in the Motion for Blood Tests to support a further evidentiary hearing is the assistant district attorney’s averment that the complainant “reported that Bruce N. Christianson is not the father of the child and that Robert M. Ely is the father of the child.”
For me, that does not raise a prima facie claim sufficient to rebut the presumption of legitimacy. There is nothing to prevent the complainant from coming forth with a proper claim should she so elect. On the record before us, I would find, as does the majority, that the order directing blood tests was not supported by the record inasmuch as paternity was not a relevant fact. I would reverse the order. Since paternity is not a relevant fact, I conclude it would be inappropriate for this court to require the appellant to remain subject to the actions of the assistant district attorney until such relevancy might, perchance, be developed. Therefore, I respectfully dissent with regard to the remand for further proceedings.