SHIRLEY BY SHIRLEY v. Javan

CIRILLO, President Judge Emeritus:

Appellant Michel J. Shirley, by his natural mother, Sharon Shirley, appeals from an order of the Court of Common Pleas granting the motion for judgment on the pleadings filed by Mehdi B. Javan, M.D. We reverse.

On April 24, 1979, Sharon Shirley gave birth to a son, Michel. In 1980, Shirley filed a complaint for support against the putative father, Mehdi B. Javan, M.D. Dr. Javan denied paternity. The court ordered blood tests. Blood testing revealed a 99.98% possibility of paternity, and Dr. Javan demanded a jury trial. One day into the trial, the parties entered into a settlement agreement. The court approved the agreement and entered a verdict in accordance with the terms of the agreement. The settlement agreement provides in relevant part:

1. That [Javan] shall pay the sum of Twenty Thousand Dollars to [Shirley] to be held in trust for the maintenance, care and support of the child____
*1336. [Shirley] hereby agrees to release and indemnify and forever save harmless [Javan] from any further ... claims in regard to the paternity or support of the child.
7. The parties hereto agree that a verdict shall be entered in the above lawsuit in favor of [Javan] and against [Shirley]....

Thereafter, on August 30, 1993, Shirley filed another complaint for support against Dr. Javan. The court held a hearing, at which time the parties stipulated to certain facts, including the fact that since August of 1993 Shirley and Michel had been receiving Aid to Families with Dependent Children (AFDC) and that both continued to receive this public assistance.

On October 27, 1993, the trial court entered an order discontinuing Shirley’s complaint based on the outcome of the 1980 action. Shirley filed a petition to reopen the discontinued complaint. After a hearing, the trial court denied Shirley’s petition. The court reasoned that a verdict entered in favor of Dr. Javan in the paternity action conclusively determined that issue in favor of Dr. Javan. On appeal to this court, that decision was affirmed. See Shirley v. Javan, 442 Pa.Super. 649, 659 A.2d 10 (1995). See generally Elfman & Sons v. Clime, 355 Pa.Super. 394, 397, 513 A.2d 488, 489 (1986) (“a judgment entered by consent or agreement will bind the parties with the same force and effect as if it had been entered after a full hearing on the merits.”) (emphasis in original); see also Keystone Bldg. Corp. v. Lincoln Sav. & Loan Ass’n, 468 Pa. 85, 91, 360 A.2d 191, 194 (1976). Shirley petitioned for review in the Pennsylvania Supreme Court. This petition was denied. Shirley v. Javan, 541 Pa. 641, 663 A.2d 693 (1995).

Thereafter, on November 13, 1995, a third complaint for support was filed against Javan, this time in Michel’s name, by his mother as his natural guardian. The complaint alleged that “Plaintiff is receiving public assistance with his mother who together receive $316.00 monthly.” Dr. Javan denied paternity. Blood tests were ordered and Javan demanded a *134jury trial. Blood tests yielded a 99.88% probability of paternity.

Dr. Javan filed an answer and new matter, alleging that Michel’s claim was barred under the doctrine of res judicata and/or collateral estoppel. Michel filed an answer to new matter, contending that the defenses of res judicata and/or collateral estoppel were waived because Dr. Javan had denied paternity, requested blood tests, and demanded a jury trial.

Dr. Javan filed a motion for judgment on the pleadings. This motion was granted and Michel filed this appeal. Michel raises one claim for our review:

Is a child in privity with his mother so that a subsequent paternity action by the child is barred by an earlier directed verdict against the child’s mother?1

In reviewing a trial court’s decision granting a motion for judgment on the pleadings, the appellate court’s scope of review is plenary; the appellate court will apply the same standard employed by the trial court, confining its consideration to the pleadings and relevant documents. Jones v. Travelers Insurance Co., 356 Pa.Super. 213, 514 A.2d 576, 578 (1986); Vogel v. Berkley, 354 Pa.Super. 291, 511 A.2d 878, 880 (1986). The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted. The court may grant judgment on the pleadings only where the moving party’s right to succeed is certain and the case is so free from doubt that trial would clearly be a fruitless exercise. Jones, supra; Vogel, supra.

In Shoemaker v. Coulson, 335 Pa.Super. 626, 485 A.2d 70 (1984), this court was presented with the issue of whether the entry and satisfaction of a judgment in lieu of child support precludes future support actions on behalf of the child. In Shoemaker, like in the instant case, mother institut*135ed a support action and alleged paternity against putative father, Barry Coulson. The action culminated in a negotiated directed verdict and lump sum settlement. Thereafter, the mother applied for public assistance at the Cumberland County Board of Assistance and filed a second support action against Coulson. The trial court held that the mother was not estopped from maintaining the support action. Coulson appealed.

On appeal, this court acknowledged two competing concerns: precluding a parent from contracting away the right of his or her child to seek adequate support from the other parent, id. at 629-30, 485 A.2d at 72 (citing Oman v. Oman, 333 Pa.Super. 356, 482 A.2d 606, 608 (1984)), and enforcing settlement agreements entered into between parents for the support of their children. Shoemaker, 335 Pa.Super. at 629-30, 485 A.2d at 72. This court, affirming the trial court’s order, emphasized that the overriding concern must be the welfare of the child. Id.

To that end, the court may always reconsider what an appropriate amount of support should be. The courts will also reconsider the terms of [a] support agreement when the maintenance of the child becomes a burden upon the public____ Such is the case before us. Appellee has applied for public assistance in the support of her child. We fail to see why the Commonwealth should bear the burden of supporting the child when her father may be so able. A one-time payment toward her support will not serve to relieve appellant of his parental obligation to the detriment of the public.

Id. (emphasis added). See also Miesen v. Frank, 361 Pa.Super. 204, 522 A.2d 85, 87 (1987) (it is well settled that a parent cannot contract away the rights of his or her child to seek adequate support from the other parent).

More recently, in Diehl v. Mulhern, 406 Pa.Super. 422, 594 A.2d 692 (1991), this court reiterated:

The obligation of a parent to support his or her child is an unwavering one, and one parent will not be permitted to *136contract away the right of his or her child to seek support from the other parent. Oman v. Oman, 333 Pa.Super. 356, 359, 482 A.2d 606, 608 (1984), quoting Broum v. Hall, 495 Pa. 635, 643 n. 11, 435 A.2d 859, 863 n. 11 (1981); Mallinger v. Mallinger, 197 Pa.Super. 34, 175 A.2d 890 (1961). In fact, we once observed that “agreements or disputes are almost irrelevant when balanced against the overwhelming concern of the law with the welfare of the children.” Commonwealth ex rel. McCartney v. McCartney, 217 Pa.Super. 417, 420, 274 A.2d 206, 207 (1970).

Diehl, 406 P\a.Super. at 428, 594 A.2d at 695, quoting Coulson, 335 Pa.Super. at 629, 485 A.2d at 72.

This court is bound by Shoemaker. The facts and considerations in this case are identical to those in Shoemaker.2 Michel’s claim, therefore, is not barred.

Reversed.

DEL SOLE, J., files a dissenting opinion.

. The appellee’s brief never addresses the question of privity, and presents its argument on finality with the assumption that the parties are privies.

. Michel argues that this court implicitly acknowledged, in its memorandum decision affirming the 1980 dismissal, that there was no privity between mother and son. This is incorrect; the Superior Court memorandum decision merely identified the fact that the issue was not before the court because Michel had not filed an independent action.