J-A35044-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

S.B., IN THE SUPERIOR COURT OF

PENNSYLVANIA 

Appellant 

 v. 

H.D., a/k/a H.S., and D.G., 

Appellees No. 1110 WDA 2015 

Appeal from the Order entered June 18, 2015, 

in the Court of Common Pleas of Washington County, 

Civil Division, at No(s): 2014-6847 

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 19, 2016 

 S.B. appeals from the Order denying his Petition to establish paternity 

and for genetic testing to prove his paternity of the minor child, K.G. 

(“Child”), who was born in May of 2009. The Order also sustained the 

Preliminary Objections filed by D.G., the former paramour of Child’s 

mother,1 H.S., formerly known as H.D, (“Mother”) to the Complaint for 

Custody filed by S.B., and dismissed the Complaint with prejudice. We 

affirm. 

The trial court set forth the underlying facts as follows: 

 [Mother] is the biological mother of [Child.] S.B. and 

[Mother] never dated[,] but had sexual relations in June and July 

of 2008. When [Mother] learned that she was pregnant, S.B. 

 

1

 D.G. is named as the father of Child on her birth certificate, and Mother, 

who had been involved in an intimate relationship with D.G. prior to Child’s 

birth, moved in with him shortly after Child was born. See Trial Court 

Opinion, 8/4/15, at 2. 
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claims that he provided [Mother] with money for an abortion and 

the two parted ways. [Mother] denied accepting money for an 

abortion. In fact, she denied having any conversation at all with 

S.B. about her pregnancy, but she agreed that they parted ways. 

S.B. testified that in the spring of 2009, he became aware[,] 

through mutual friends[,] that [Mother] was in the hospital in 

labor. At the hearing, he claimed that he was “lied to and told 

[C]hild wasn’t mine.” However, he also stated that it could have 

been as early as 2012 that others told him [that C]hild 

resembled him. 

 According to S.B., [Mother] was in a relationship with D.G. 

at the same time that he and [Mother] had sexual relations; 

however, [Mother] maintains that she and D.G. were “off” at the 

time that she had relations with S.B. [C]hild was not born into 

an intact marriage[,] as [Mother] was not married at the time 

[C]hild was born; however, D.G.’s name is listed as the father on 

[C]hild’s birth certificate. [Mother] stated that she moved in 

with D.G. shortly after [C]hild was born. 

 [Mother] and D.G. are no longer in a relationship. They 

maintain a shared custody agreement[,] which they have 

consistently followed for the past three or four years. In July 

2014, S.B. attended a wedding where he observed [C]hild for 

the first time in person. He testified that [C]hild looked like him 

because she was “skinny, tall, and long legged.” He further 

stated that, “... when I turned and looked, it just gave me an 

eerie feeling. That I was lied to. That I was tricked.” At the 

hearing, testimony revealed that [C]hild looks biracial.[2] ... 

On November 5, 2014, S.B. filed a [C]omplaint for custody 

against [Mother] regarding ... [Child]. In an [O]rder dated 

December 10, 2014 [the trial court] scheduled a hearing for 

February 24, 2015[,] in order to determine whether D.G. should 

be permitted to intervene in the custody matter. In a consent 

Order dated December 11, 2014, D.G. was granted leave to 

intervene in the matter and the Prothonotary was directed to 

amend the caption to include D.G. On December 29, 2014, D.G. 

filed an [A]nswer to S.B.’s custody [C]omplaint and [N]ew 

[M]atter. On January 6, 2015, S.B. presented a [P]etition to 

establish paternity and for genetic testing, and on January 7, 

2015, D.G. filed [P]reliminary [O]bjections to the custody 

 

2

 S.B. is African American while Mother is Caucasian. 
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[C]omplaint. Thereafter, [the trial court] scheduled a hearing to 

take place on May 29, 2015. On April 15, 2015, S.B. submitted 

a brief in support of the [P]etition to establish paternity and for 

genetic testing. On April 30, 2015, [Mother] and D.G. submitted 

briefs in opposition to S.B.’s [P]etition to establish paternity. On 

May 20, 2015, D.G. submitted a brief in opposition to S.B.’s 

custody [C]omplaint, and on May 22, 2015, S.B. submitted a 

brief in opposition to D.G.’s [P]reliminary [O]bjections. 

Trial Court Opinion, 8/4/15, at 1-3 (citations omitted, footnote added). 

 On May 29, 2015, the trial court held a hearing on S.B.’s Petition to 

establish paternity and for genetic testing, and on D.G.’s Preliminary 

Objections. On June 18, 2015, the trial court entered an Order denying 

S.B.’s Petition to establish paternity and for genetic testing, sustaining D.G.’s 

Preliminary Objections, and dismissing with prejudice the Complaint for 

Custody filed by S.B. On July 17, 2015, S.B. timely filed a Notice of Appeal,3

along with a Concise Statement of Errors Complained of on Appeal pursuant 

to Pa.R.A.P. 1925(a)(2)(i). 

 On appeal, S.B. raises one issue: “Under all the circumstances of this 

case, was [S.B.] estopped from claiming paternal rights with respect to 

[C]hild by his delay in taking action?” S.B.’s Brief at 2. 

 Our standard of review of a trial court’s order relating to paternity is 

whether the trial court abused its discretion or committed an error of law. 

D.M. v. V.B., 87 A.3d 323, 327 (Pa. Super. 2014). 

 

3

 “This Court accepts immediate appeals from orders directing or denying 

genetic testing to determine paternity.” Barr v. Bartolo, 927 A.2d 635, 

638 (Pa. Super. 2007) (citation omitted). 
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An abuse of discretion exists if the trial court has overridden or 

misapplied the law, or if there is insufficient evidence to sustain 

the order. Moreover, resolution of factual issues is for the trial 

court, and a reviewing court will not disturb the trial court’s 

findings if they are supported by competent evidence. It is not 

enough [for reversal] that we, if sitting as a trial court, may 

have made a different finding. 

Vargo v. Schwartz, 940 A.2d 459, 462 (Pa. Super. 2007) (citation 

omitted). 

S.B. challenges the trial court’s finding that his delay in asserting his 

rights precluded him from seeking a determination of Child’s paternity under 

the doctrine of paternity by estoppel. S.B.’s Brief at 10. S.B. claims that 

because Mother did not inform him that he had become a father, he was 

never given the opportunity to act as a father. Id. at 12-13, 15. S.B. 

asserts that he repeatedly expressed concerns about the paternity of Child, 

but had only second-hand reports that Child, who is biracial, resembled him, 

whereas both Mother and D.G. are Caucasian. Id. at 10, 16; see also id. at 

15 (wherein S.B. states that neither Mother nor D.G. denied that he could be 

the father of Child). S.B. argues that, if, at the time of Child’s birth, the 

complexion of Child puzzled Mother, she could have inquired about the 

biracial appearance of Child. Id. at 16. S.B. points out that, when he saw 

Child in person, he acted promptly to establish paternity through genetic 

testing. Id. at 12. S.B. alleges that while Child will inevitably learn that 

D.G. is not her biological father, he does not seek to shut D.G. out of Child’s 

life. Id. at 16, 18; see also id. at 16-17 (wherein S.B. claims that if his 
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paternity if confirmed, a determination as to a new custody arrangement 

should be conducted with Child’s best interests in mind). S.B. urges that we 

should reverse the trial court Order and allow genetic testing so that Child 

will know that her birth father did not abandon her. Id. at 18. 

In making a legal determination of the paternity of a child, we must 

consider the following: 

[F]irst, one considers whether the presumption of paternity 

applies to a particular case.[4] If it does, one then considers 

whether the presumption has been rebutted.[5] Second, if the 

presumption has been rebutted or is inapplicable, one then 

questions whether estoppel applies. Estoppel may bar either a 

plaintiff from making the claim or a defendant from denying 

paternity. 

N.C. v. M.H., 923 A.2d 499, 502-503 (Pa. Super. 2007) (citation omitted, 

footnotes added); see also K.E.M. v. P.C.S., 38 A.3d 798, 810 (Pa. 2012) 

(holding that “paternity by estoppel continues to pertain in Pennsylvania, but 

it will apply only where it can be shown, on a developed record, that it is in 

the best interest of the involved child.”). 

 

4

 “The presumption of paternity, i.e., the presumption that a child conceived 

or born during a marriage is a child of the marriage, has been described by 

our Supreme Court as one of the strongest presumptions known to the law.” 

Vargo, 940 A.2d at 463 (citation and quotation marks omitted). Because 

the policy underlying the presumption is the preservation of marriages, the 

“presumption of paternity applies only where the underlying policy to 

preserve marriages would be advanced by application of the presumption.” 

Id. “When there is no longer an intact family or a marriage to preserve, 

then the presumption of paternity is not applicable.” Id. 

5

 “In Pennsylvania, impotency/sterility and non-access constitute the only 

ways to rebut the presumption of paternity.” Vargo, 940 A.2d at 463. 

“Notably, blood tests cannot be offered to rebut the presumption of 

paternity.” Id. 
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Paternity by estoppel is merely the legal determination that 

because of a person’s conduct (e.g., holding the child out as his 

own or supporting the child), that person, regardless of his true 

biological status, will not be permitted to deny parentage.... The 

law will not permit a person in these situations to challenge the 

status that he or she has previously accepted. The doctrine of 

paternity by estoppel seeks to protect the interests of the child. 

Estoppel is based on the public policy that children should be 

secure in knowing who their parents are. If a certain person has 

acted as the parent and bonded with the child, the child should 

not be required to suffer the potentially damaging trauma that 

may come from being told that the father [s]he had known all 

h[er] life is not in fact h[er] father. 

... [I]f there is no difference in the supportive relationship 

available from the psychological and biological fathers, we 

conclude that the responsibility for fatherhood should lie with the 

biological father. 

The doctrine has most usually been applied to (1) preclude a 

man who had held a child out as his own from avoiding further 

support of the child after his relationship with the mother had 

ended; or (2) preclude a woman who had held one man out as 

her child’s father from seeking support from another man later 

on. In other words, those who mislead a child as to the identity 

of his or her natural father, [sic] cannot then turn around and 

disprove their own fiction to the detriment of the child. 

Yet, estoppel also can serve to preclude a biological father from 

asserting his parental rights. 

*** 

[I]f a biological father is not obstructed from pursuing his 

parental claim and he acquiesces in the fiction that someone else 

is his child’s father, the doctrine of estoppel may be invoked to 

bar his later attempt to assert his rights. 

T.E.B. v. C.A.B., 74 A.3d 170, 173-75 (Pa. Super. 2013) (citations,

quotation marks, brackets, and some paragraph breaks omitted). “[W]here 

estoppel is applied, blood tests may be irrelevant, for the law will not permit 
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a person in estoppel situations to challenge the status which he or she has 

previously accepted. Only when estoppel does not apply will blood tests be 

ordered.” D.M., 87 A.3d at 327 (citation omitted). 

With regard to a fraud allegation in a paternity case, our Court noted 

the following: 

In B.O. v. C.O., 404 Pa. Super. 127, 590 A.2d 313 

(1991), this Court stated that “when an allegation of 

fraud is injected in [an acknowledgement of paternity] 

case, the whole tone and tenor of the matter changes. It 

opens the door to overturning settled issues and policies 

of the law.” B.O., 590 A.2d at 315. This Court went on 

to create a narrow fraud exception for challenging 

paternity, which is otherwise a settled issue based on the 

signed acknowledgment. We adopted the traditional 

elements of fraud established in Pennsylvania 

jurisprudence: 

(1) a misrepresentation, (2) a fraudulent 

utterance thereof, (3) an intention by the maker 

that the recipient will thereby be induced to act, 

(4) justifiable reliance by the recipient upon the 

misrepresentation, and (5) damage to the 

recipient as the proximate result. 

Id. 

Recent cases have moved away from this rigid five-prong 

test[,] which this Court acknowledged in B.O. as 

problematic and somewhat circular. B.O., 590 A.2d at 

315. Our recent decision of Glover v. Severino, 946 

A.2d 710 (Pa. Super. 2008), provides additional guidance 

as to the elements of fraud in the context of challenges to 

acknowledgments of paternity: 

A misrepresentation need not be an actual 

statement; it can be manifest in the form of 

silence or failure to disclose relevant information

when good faith requires disclosure. Fraud is 

practiced when deception of another to his 
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damage is brought about by a misrepresentation 

of fact or by silence when good faith required 

expression. Fraud comprises anything calculated 

to deceive, whether by single act or combination, 

or by suppression of truth, or suggestion of what 

is false, whether by direct falsehood or innuendo, 

by speech or silence, word of mouth, or look or 

gesture. 

Id. (quotations and citations omitted) (emphasis in 

original). 

R.W.E. v. A.B.K., 961 A.2d 161, 167-68 (Pa. Super. 2008). 

 Here, the trial court found that S.B. was estopped from asserting his 

alleged parental rights6 based on the following: 

In the present case, S.B. seeks to establish that he is the father 

of ... [C]hild, and he intends to seek custody if verified by a 

paternity test. However, the [c]ourt finds that he is estopped 

from asserting a claim of paternity, thus no blood tests can be 

ordered. S.B.’s failure to act during the first five or six years of 

[C]hild’s life effectively estops him from now raising a claim of 

paternity. 

Specifically, S.B. testified that he “heard that [Mother] was at 

the hospital delivering.” Hrg. Transcr. 23:19-20; Hrg. Transcr. 

32:6-12. When [C]hild was one year old, he started to think 

that [C]hild was his. Hrg. Transcr. 53:2-5. He stated that he 

has seen pictures of [C]hild, and he also noted that when the 

baby was about a year old, she started to look biracial. Hrg. 

Transcr. 48:20-21; Hrg. Transcr. 52:24-25. Further, S.B. 

admitted that as early as 2012, he was informed that [C]hild 

resembled him. Hrg. Transcr. 37:2-8. Despite this information, 

he did not come to court at this time. Hrg. Transcr. 37:18-19. 

When asked why he did not come to court sooner, S.B. stated 

that he “didn’t want this to be a bad situation” because the 

parties have mutual friends. Hrg. Transcr. 42:2-3. When 

pressed further, he admitted he “did not have the financial 

means.” Hrg. Transcr. 43:20-21. He also stated that he has 

 

6

 S.B. notes that the presumption of paternity is not applicable in this case 

because Mother never married D.G. See S.B.’s Brief at 10. 
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always had concerns but “didn’t know the proper channels to 

take.” Hrg. Transcr. 46:14-15. Based on the aforementioned, it 

is evidence that he should have acted sooner. 

The testimony of T.S. supports the notion that S.B. was aware 

that [C]hild may be his and that he simply waited too long to 

act. T.S., who graduated from high school with the parties, 

testified at the hearing. According to T.S., during the first year 

of [C]hild’s life, she and S.B. had a conversation at the [bar] 

where she was a bartender at the time. Hrg. Transcr. 64:13-21. 

S.B. was drinking during the conversation. According to T.S., 

S.B. informed her that he was aware that [Mother] was 

pregnant, he had given her money to get an abortion, and he 

knew that she did not get the abortion. T.S. further testified 

that S.B. stated during this conversation that he knew that 

[C]hild was his. Hrg. Transcr. 65:5-8. T.S. stated she had 

several subsequent conversations with S.B. over the years, and 

“It was always the same thing. Just, you need to get a hold of 

[Mother] You need to tell her ... I want to see my daughter. I’m 

going to take her to court ... it was always the same thing.” Hrg. 

Transcr. 66:22-25. According to T.S., S.B. never asked her for 

[Mother]’s phone number. Hrg. Transcr. 67:18-20. 

Despite testimony which clearly points to the fact that S.B. knew 

he may be the biological father of [C]hild, he waited 

approximately five years to seek court intervention. [C]hild is 

now six years old and D.G. is the only father she has ever 

known. D.G. has cared for [C]hild her entire life. The [c]ourt 

finds that S.B.’s conduct precludes him from intervening and 

disrupting [C]hild’s life at this point in time. He cannot be 

permitted to challenge a status[,] which he previously accepted. 

Trial Court Opinion, 8/4/15, at 5-6 (citation omitted). We agree. 

Moreover, with regard to S.B.’s claim that Mother had committed 

fraudulent misrepresentation by omission, the trial court found the following: 

The evidence in this case does not amount to [] a finding [of 

fraud]. There is no evidence that [Mother and D.G.] 

misrepresented anything to S.B.[,] nor is there any evidence 

that S.B. actually relied on an alleged misrepresentation. S.B. 

claims that he could not locate or contact [Mother] and that he 

was tricked. However, the testimony revealed that the parties 
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have numerous friends. According to [Mother], she has had the 

same cell phone number for two and a half to three years. Hrg. 

Transcr. 78:17-25. Her number has always been in the white 

pages of the phone book under her maiden name. Hrg. Transcr. 

79:24-25. She has maintained a Facebook account since late 

2009 or early 2010 and posts pictures of [Child] to this page. 

Hrg. Transcr. 82:17-22. She informed the [c]ourt that S.B. was 

not blocked from her [F]acebook page until November 2014 

when these proceedings ensued. Hrg. Transcr. 83:7-10. 

Additionally, S.B. knows where D.G. lives and admitted that he 

has seen [F]acebook pictures on D.G.’s [F]acebook page. It is 

evidence to the [c]ourt that [Mother] and D.G. could have been 

reached, and there is no evidence to suggest that they did 

anything to prevent S.B. from contacting them. S.B. himself 

admitted he would have sought court intervention sooner, but he 

did not have the financial means, he did not know the proper 

channels, and he did not want to create a bad situation. Hrg. 

Transcr. 43:13-18; Hrg. Transcr. 46:14-15; Hrg. Transcr. 42:2-

3. This proves that he was not misled[,] nor did he rely on any 

alleged misrepresentation. 

The evidence clearly demonstrates that S.B. waited too long to 

assert his rights, and his inaction is not the product of fraud. 

Therefore, paternity by estoppel is applicable, and S.B. is 

precluded from proceeding any further in asserting parental 

rights. 

Trial Court Opinion, 8/4/15, at 7-8. We further note S.B. testified that, as 

early as 2012, people had informed him of Child’s resemblance to him. N.T., 

5/29/15, at 37; accord Trial Court Opinion, 8/4/15, at 2. 

The trial court’s findings, i.e., that S.B. waited too long to assert his 

rights as Child’s father while acquiescing to Mother’s paramour, D.G., as the 

father of Child, and that Mother did not commit fraud, are supported by the 

record. See Trial Court Opinion, 8/4/15, at 5-8; see also B.K.B. v. J.G.K., 

954 A.2d 630, 636 (Pa. Super. 2008) (concluding that the alleged biological 

father’s failure to pursue parental rights until child was nine years old 
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estopped him from challenging the mother’s former husband’s status as the 

child’s father); Moyer v. Gresh, 904 A.2d 958, 962 (Pa. Super. 2006) 

(concluding that where biological father voluntarily relinquished his parental 

rights to another man during the first nine years of child’s life, biological 

father was estopped from asserting his parental rights towards the child); In 

re M.J.S., 903 A.2d 1, 10 (Pa. Super. 2006) (holding that the biological 

father was estopped from asserting paternity where he knew that another 

man had been named the father, and despite having the right to 

acknowledge paternity, he waited to assert paternity until three years after 

the child had been adopted); Buccieri v. Campagna, 889 A.2d 1220, 1228 

(Pa. Super. 2005) (holding that where the putative father was inactive for 

eight years, he was “estopped by his own past conduct from obtaining 

genetic tests to establish his paternity and/or assert his paternal rights”). As 

the trial court’s findings are supported by competent evidence, we will not 

disturb them. See Vargo, 940 A.2d at 462. Accordingly, we affirm the trial 

court Order. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 4/19/2016 
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