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An Erie court should not have prevented a man from denying paternity when the child’s mother induced him into treating the child as his own, the Superior Court ruled. Because the mother knew she was having sex with someone besides the putative father close to the time of conception and never revealed that to him, “this constitutes fraud or at least misrepresentation,” a 2-1 court panel decided in Gebler v. Gatti. Pennsylvania courts have held that a putative father won’t be estopped from denying paternity when fraudulent conduct tricked him into caring for the child as his own. Thus, Judge Richard B. Klein said, trial court shouldn’t have declared Gregory J. Gatti to be the legal father of B.J.G. – the now-4-year-old child. Klein explained that the public policy considerations driving the paternity by estoppel doctrine were not present in Gebler. There is “no discernible relationship between the child and Gatti; Gatti discontinued acting as father when he learned that he was not the biological father; and the child is not left unprotected since putative father Ray Sisson has been added as a party and blood tests have determined him to be the biological father.” Klein also noted the “strong” policy against permitting someone who relied upon a “misrepresentation” to suffer harm as a result. According to the decision, the mother, Kelly N. Gebler, thought that Gatti was the child’s father, although he wasn’t the only one she was having sex with around the time of conception. Gebler and Gatti never married or lived together, so the presumption of paternity did not apply to him. Klein wrote, “Whoever mother guessed as the probable father, she knew it was not certain that the father was Gatti. Before assuming responsibility for a child that might not be his, he needs to know that. It is clear from our review of the record that mother’s concealment was intended to deceive Gatti.” Judge Seamus P. McCaffery joined Klein’s opinion. Senior Judge Patrick R. Tamilia dissented. “Courts have deemed that paternity is not a relevant factor when the father has voluntarily and in writing acknowledged paternity and entered into an agreed support order for the child . . . or when the mother has sought and received prior custody and support orders which determined paternity as a matter of law,” Tamilia wrote. He cited Wachter v. Ascero and Commonwealth ex rel. Coburn v. Coburn. And as the Superior Court reasoned in Freedman v. McCandless, “estoppel in paternity actions is merely the legal determination that because of a person’s conduct (e.g., holding out the child as his own, or supporting the child), that person, regardless of his true biological status, will not be permitted to deny parentage.” Tamilia argued that the majority strayed from the case record and the trial judge’s finding of facts. The Erie trial judge, who found Gatti to be the legal father, specifically ruled out fraud. She found no evidence that Gebler made any misrepresentation inducing Gatti to act as father. Tamilia noted that the trial judge found credible Gebler’s testimony that Gebler believed Gatti to be the child’s father and was “unaware” he wasn’t a biological parent. Gatti didn’t seriously doubt his paternity for almost two years, when he was required to pay more to support her and heard people talking about how she didn’t resemble him, Tamilia observed. Further, Gatti didn’t bring up the fraud allegation until after the court record was closed, so the issue is untimely and may not be considered by the Superior Court, Tamilia explained. “The majority has developed its theory of the case in reverse fashion by pursuing the blood test and DNA as proof of nonpaternity before establishing by clear and convincing evidence that paternity by estoppel was procured fraudulently,” Tamilia wrote. “The trial judge is the arbiter of credibility of the witnesses and weight of the evidence, and on all counts she has concluded that paternity of the child was established pursuant to the doctrine of estoppel.” But the majority said the trial court incompletely stated the law. “The court disregards the fact that Gatti was operating under the belief that he in fact was the father, because mother never indicated to him that it was possible that another man could be the father,” Klein wrote. “That he embraced that status for a relatively short period of time solely because he was misled is a critical factor the trial court overlooks.” Counsel of record for Gebler was Peter W. Bailey; for Gatti was James G. Moore; and for Sisson was Frank L. Kroto Jr. They practice in Erie, Pa. (Copies of the 21-page opinion in Gebler v. Gatti , PICS No. 06-0170, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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