author: BECK, Judge: SPAETH, President Judge,

text:
    506 A.2d 901
    Joseph J. GEYER and Regina H. Geyer, Appellants, v. John STEINBRONN, Raymond Miley, Sr., Miley Security, Inc., Miley Detective Agency, Inc., and Service Review, Inc. Joseph J. GEYER and Regina H. Geyer v. John STEINBRONN, Raymond Miley, Sr., Miley Security, Inc., Miley Detective Agency, Inc. and Service Review, Inc. Appeal of John STEINBRONN and Miley Security, Inc. Joseph J. GEYER and Regina H. Geyer v. John STEINBRONN, Raymond Miley, Sr., Miley Security, Inc., Miley Detective Agency, Inc. and Service Review, Inc. Appeal of John STEINBRONN, and Miley Security, Inc.
    Superior Court of Pennsylvania.
    Argued March 20, 1984.
    Filed Feb. 3, 1986.
    Reargument Denied March 21, 1986.

      Edward C. German, Philadelphia, for Service Review, appellant (at 2640 and 2641) and appellee (at 2639).
    Stephen C. Vondercrone, Jr., Lansdale, for Steinbronn, appellant (at 2640 and 2641) and appellee (at 2639).
    George J. O’Neill, Philadelphia, for Geyer, appellants (at 2639) and appellees (at 2640 and 2641).
    Before SPAETH, President Judge, and BECK and TAMILIA, JJ.
   BECK, Judge:

The instant litigation arose out of an unfavorable employment recommendation concerning plaintiff Joseph Geyer. Plaintiff sued defendants Miley Security Service Inc., his former employer; John Steinbronn, Miley Security’s vice president and plaintiff’s former supervisor; Raymond Miley Sr., an alleged officer of Miley Detective Agency, Inc., the corporate alter ego of Miley Security; and Service Review, Inc., a mercantile reporting agency.

Plaintiff alleged that defendants communicated to plaintiff’s prospective employer, Sears, Roebuck & Co., a false and defamatory report of his employment record which caused Sears not to hire him. Plaintiff’s complaint rested on the theories of defamation and intentional interference with prospective contractual relations. Plaintiff’s wife Regina Geyer claims for the resulting loss of consortium.

At the close of the jury trial, the court directed verdicts in favor of Raymond Miley Sr., Miley Detective Agency and Service Review Inc. The jury returned a verdict in favor of plaintiffs against Steinbronn and Miley Security Services, assessing $100,000 in compensatory damages for Mr. Geyer, $35,000 damages for Mrs. Geyer’s loss of consortium, and $50,000 punitive damages against Steinbronn only.

Appellants John Steinbronn and Miley Security Services appeal from the judgment entered on the verdict, raising issues which we will divide for the sake of convenience into several categories. First, appellants attack the verdicts on the defamation and intentional interference with contract counts as against the evidence, the weight of the evidence and the law. Secondly, they claim error in the court’s charge to the jury on these counts. Thirdly, they contend that the damages awarded were excessive. Finally, appellants argue that the trial court abused its discretion in opening a judgment of non pros entered in favor of all defendants, thereby allowing the action to proceed to trial.

Plaintiffs cross-appeal from the trial court’s orders directing verdicts in favor of Raymond Miley, Sr. and Service Review Inc. and denying various other motions of plaintiffs. Plaintiffs allege the following specific errors:

1. The Court Erred In Refusing Plaintiffs’ Motion To Amend The Caption and Complaint To Correct Misnomer of Raymond Miley, Sr., Defendant.
2. The Court Erred In Refusing To Admit The Deposition Of John Steinbronn As Plaintiffs’ Evidence Against Service Review, Inc., And All Other Defendants.
3. The Court Erred In Granting The Motions Of Defendants Service Review, Inc., And Raymond Miley For A Directed Verdict.
4. The Court Erred In Refusing Plaintiffs’ Points For Binding Instructions; Plaintiffs’ Motions For Directed Verdicts Against Service Review, Inc., And Raymond Miley, Jr., And Plaintiffs’ Motions For Judgment N.O.V. Upon The Whole Record Against Said Defendants Or In The Alternative, For A New Trial As To Those Defendants Only.
5. The Lower Court Erred In Denying Plaintiffs’ Motion For Assessment Of Damages For Delay Pursuant To Pa.R.C.P. No. 238.

For the reasons stated below we affirm.

NON PROS APPEAL

Pursuant to Pa.R.A.P. 311(d)(l)(i), appellants contest on appeal the trial court’s opening of a non pros judgment entered in their favor. See Valley Forge Historical Society v. Washington Memorial Chapel, 330 Pa.Super. 494, 479 A.2d 1011 (1984), allocatur denied, October 15, 1984.

Plaintiffs commenced this action by filing a summons in trespass on October 30, 1974. On October 23, 1975, defendants Steinbronn, Miley Sr., and the Miley companies filed a praecipe for rule to file a complaint within twenty days. The praecipe and rule were served on plaintiffs, but plaintiffs did not file a complaint within the requisite time period. On November 28, 1975, a judgment of non pros was entered in favor of all the defendants. On December 12, 1975, plaintiffs petitioned the court to strike or open the non pros judgment. The plaintiffs’ petition was granted on June 17, 1976.

A petition to open a judgment of non pros is directed to the equitable powers of the court and as such, is “ ‘by way of grace and not of right. Its grant or refusal is peculiarly a matter for the lower court’s discretion. An appellate court may not reverse the lower court’s ruling unless an abuse of discretion is clearly evident____’ ” Lewis v. Reid, 244 Pa.Super. 76, 80, 366 A.2d 923, 924 (1976) (citation omitted), aff'd on reargument, 244 Pa.Super. 599, 371 A.2d 872 (1976), allocatur denied, April 7, 1977.

Three requirements must be satisfied before a non pros judgment may be opened: (1) the petition to open must be promptly filed; (2) a reasonable explanation or excuse must be offered for the petitioner’s defective conduct (here, the failure to file a timely complaint), and (3) facts constituting grounds for petitioner’s underlying cause of action must be alleged. Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Reid.

In the case sub judice, plaintiffs filed their petition to open the non pros judgment within fifteen days of the entry of said judgment; hence, the petition to open was promptly filed. Furthermore, the complaint attached as an exhibit to the plaintiffs’ petition to open averred facts establishing grounds for a cause of action in defamation and a cause of action for intentional interference with prospective contractual relations. See Kennedy v. Board of Supervisors of Warminster Township, 243 Pa.Super. 46, 364 A.2d 442 (1976); see also discussion of both substantive issues, infra. Finally, plaintiffs explained that their complaint was not filed within the time frame stipulated by the court’s rule because plaintiffs’ counsel and defendants’ counsel agreed to an extended filing date for plaintiffs’ complaint.

Given these circumstances, we hold that the trial court did not clearly abuse its discretion in finding that the plaintiffs met the criteria for opening the judgment of non pros, and accordingly, we affirm the opening of that judgment.

FACTUAL BACKGROUND

Plaintiff Joseph Geyer applied for employment as a security assistant with Sears, Roebuck & Co. in December 1972 and again in August 1973. He listed Miley Security Services on his application as one of his former employers and stated as his reason for leaving, “Could not get along with vice president [Steinbronn]. Resigned.” Plaintiff was interviewed by Sears and offered a position which he accepted. R. 526a-527a, 531a. On October 15, 1973, Iva Reiter, a personnel manager for Sears, wrote Geyer instructing him to report on November 19, 1973 for a physical examination and to begin work. Her letter also informed Geyer that Sears would conduct a routine investigation of his employment references and personal background.

Sears engaged Service Review to conduct the investigation. Service Review’s initial report stated that no criticisms were forthcoming from any contact, including Miley Security. At the same time, though, Sears sent its own reference request to several of Geyer’s former employers. On October 25, 1973, Steinbronn responded to this request with a letter containing the following statements concerning Geyer:

In reply to your request for information on Joseph J. Geyer.
1. In the two month period Joseph Geyer was employed as a manager of Security Guards, he could not cope with the duties assigned.
a. He would leave the office and revert to drinking and use a company car.
b. He was informed not to use a company car for any reason. Taking a 1972 vehicle he did at 10:00 p.m. on Luzerne Street run head on into a pole — resulting in $800.00 in damages.
c. He was fired as a result of his failure to obey directives and orders.
d. His signature has been found on several checks as an endorsor. By letter we requested of him to call our office for an appointment, as we are investigating forgeries — but he failed to respond.
e. Our case is being turned over to the District Attorney of Bucks County and I am sure he will be sent for, to explain his signature or disprove his signature.
f. His services were poor and in no case would we re-employ.

Mrs. Reiter telephoned Geyer to discuss the conflicting reports. Geyer provided her with a favorable letter purportedly signed by Steinbronn, dated May 17, 1973. Sears then requested Service Review to conduct a personal interview with Steinbronn. Service Review sent Wayne Rowland, a field inspector, to interview Steinbronn. Rowland was instructed simply to report Steinbronn’s statements to Iva Reiter without any further evaluation or verification. Rowland’s narrative report of the interview reads as follows:

Subject worked here as a security guard from 3-12-73 to 5-13-73.
Subjects file was not here at this office as his file has been forwarded to the lawyers office of the Miley Security Inc. for the turning over to the D.A.’S office in Bucks County for possible charges being filed against the named subject for theft by forgery.
A. Many checks have been forged and they are in the process of checking various avenues that all lead to the subject in question.
B. Subject even received a 100 dollars in check from the employees credit union after he was out of the employ of Miley a week after they released him from duty. (They believe he had a co worker inside here working with him).
C. Subject was not susposed [sic] to drive any company cars as the insurance co. that insures these cars had a rider that excluded the subject due to a drink problem he had suffered and was susposed [sic] to have been cured of, but it seems that the 25th police dist. in Phila. called in here after a car had been wrecked and left in there [sic] dist. by the subject.
D. Letter sent to Sears and Roebuck Company with a recommendation for employment was never written by any authorized personnel here in this office, even though it was signed by the V.P. — he states that it does not bear his signature, but that it is a forged signature.
Interview was with Mr. John Steinbrown [sic] V.P. for the Miley Security Inc.
(Misspellings, grammatical and syntactical errors in original.)

Rowland testified at trial that this written report accurately related the substance of his conversation with Steinbronn.

On November 2, 1973, Iva Reiter wrote Geyer informing him that Sears would not be hiring him after all and that this decision was “based, at least in part, on the information obtained” from Service Review.

At trial plaintiffs presented a version of the facts markedly different from that suggested by Steinbronn’s letter and Service Review’s report. Joseph Geyer testified that he did not miss work at Miley because of his drinking. He did acknowledge difficulties with alcoholism both before and after that time. With respect to the auto accident, Geyer testified that he had been specifically instructed by Steinbronn to use the car that evening, and that following the accident there was an argument with Steinbronn about whether the company markings on the car had been covered as Steinbronn had ordered, not about whether he had been intoxicated. Geyer stated he was not fired for this incident; he insisted he resigned voluntarily shortly thereafter because of the continuing personality conflict between him and Steinbronn. This conflict manifested itself in Steinbronn’s constantly screaming and hollering at him and otherwise making unreasonable demands. Geyer also testified that he did not participate in any forgery and did not negotiate any forged checks, and that no one from Miley had ever contacted him regarding a forgery investigation.

Plaintiffs also produced the deposition testimony of John Steinbronn, read into the record as his admissions. Steinbronn stated that he knew who the forger was, that it was not Geyer, and that Geyer was never a suspect. He stated that Geyer’s file was never given to the District Attorney for criminal investigation. Further testimony indicated, or at least would support an inference, that Steinbronn knew these facts at the time he gave the information to Sears and Service Review. Steinbronn also testified that there was no employees’ credit union at Miley, and that there was no insurance rider prohibiting Geyer from using company vehicles. Steinbronn claimed that he was not the source of the inaccuracies in Rowland’s report and that Rowland did not accurately relate their conversation.

Both Mr. and Mrs. Geyer testified about the effects of Steinbronn’s accusations and Sears’ rejection of Mr. Geyer on their lives. They related that Mr. Geyer’s alcohol problems worsened precipitously; he began going on binges and was absent from the home for days. Plaintiffs’ marriage deteriorated; arguments often culminated in Mr. Geyer striking his wife or breaking things. Mr. Geyer was hospitalized on three occasions over the next several years for depression and alcohol abuse, and he underwent psychotherapy. Plaintiffs testified that their difficulties finally began to abate in 1980. Mr. Geyer was able to stop drinking. The couple entered an Alcoholics Anonymous program and Mr. Geyer began to be successful in his new career as a self-employed exterminator.

It is important to note that appellants presented no testimonial evidence, but they did introduce several exhibits into evidence. Some of the documents were copies of forged checks allegedly bearing Geyer’s endorsement; the remainder were primarily income tax returns relevant to the damage issues.

DEFENDANTS/APPELLANTS’ APPEAL

I. Sufficiency and Weight of the Evidence — Liability

A. Defamation

Steinbronn and Miley Security Services contend that the court erred in denying their motions for judgment n.o.v. or a new trial. In addressing these issues we follow certain well-settled rules. “A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper; any doubts should be resolved in favor of the verdict winner.” Merion Spring Co. v. Muelles Hnos. Garcia Torres, 315 Pa.Super. 469, 481, 462 A.2d 686, 693, quoting Martin v. Soblotney, 296 Pa.Super. 145, 168-169, 442 A.2d 700, 702 (1982), rev’d, on other grounds, 502 Pa. 418, 466 A.2d 1022 (1983). On appeal from the trial court’s refusal of a motion for judgment n.o.v., “the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner ... the benefit of every favorable inference reasonably to be drawn from the evidence.” Laniecki v. Polish Army Veterans Assn., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103 (1984), quoting McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 442, 450 A.2d 991, 993 (1982).

A motion for a new trial should be granted only if the verdict is so contrary to the evidence as to shock the conscience of the court. Leslie v. Pennco, Inc., 323 Pa.Super. 23, 470 A.2d 110 (1983). The trial court’s ruling on the motion for new trial will not be reversed on appeal “absent an abuse of discretion or error of law which controlled the outcome of the case.” Laniecki, 331 Pa.Super. at 418, 480 A.2d at 1103.

When the record is reviewed in light of these principles it is clear that the jury’s verdict on the defamation counts must stand. By introducing virtually no evidence on their own behalf, appellants challenged the Geyers to meet their burden of proof. Among the elements which plaintiffs were required to establish are the defamatory character of the communication, the understanding by the recipient of its defamatory meaning, special harm resulting to the plaintiff from its publication, and abuse of a conditionally privileged occasion. 42 Pa.C.S. § 8343(a)(1), (4), (6), (7).

Appellants make a patently meritless attempt to argue that the statements at issue were non-defamatory. A fair reading of the statements shows that they implicated Joseph Geyer in a forgery scheme in which a large amount of money was embezzled from his employer. Accusations of dishonesty or theft by an employee, even if indirect, have consistently been held to meet the test of defamatory meaning. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984); Berg v. Consolidated Freightways, Inc., 280 Pa.Super. 495, 421 A.2d 831 (1980). See also Thomas Merton Center v. Rockwell International, 497 Pa. 460, 463, 442 A.2d 213, 216 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982) (statement which “ascribes to another conduct, character or a condition that would aversely affect his fitness for the proper conduct of his lawful business, trade or profession” is defamatory). We note that plaintiff was pursuing a career in security, a field where integrity and trustworthiness are especially crucial. In this context the veiled accusations in the statements of Steinbronn must be viewed as capable of a defamatory meaning.

The understanding by the recipient (Sears) of the defamatory character of the communication is self-evident; the reports were treated as reflecting sufficiently unfavorably on Geyer’s qualifications and fitness for the job that an offer of employment already made was summarily withdrawn. For the same reason, there can be no doubt that there was sufficient evidence for the jury to find special harm.

Finally, plaintiffs introduced sufficient evidence to meet their burden of demonstrating abuse of the conditional privilege. Plaintiffs concede that the statements of Steinbronn in response to the inquiries of Sears and Service Review are conditionally privileged. See Zuschek v. Whitmoyer Laboratories, Inc., 430 F.Supp. 1163 (E.D.Pa.1977), aff'd, 571 F.2d 573 (3rd Cir.1978). In the private-plaintiff context, a conditional privilege may be defeated upon a showing of either negligence or malice. Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). We agree with the trial court that the evidence was sufficient for the jury to conclude that “Steinbronn communicated in at least a negligent manner several defamatory falsehoods concerning plaintiff.” Trial Court Opinion at 16.

Appellants suggest in their brief that the evidence establishes that the statements of Steinbronn were true. In this regard we note that our Supreme Court in Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984), upheld 42 Pa.C.S. § 8343(b)(1), which places the burden of proving the truth of the defamatory communication on the defendant. As we have noted, defendants presented little evidence on their behalf. At best, we can say that defendants’ cross-examination of plaintiff’s witnesses raised some factual issues about the accuracy of Steinbronn’s statements, but the jury was certainly free to resolve these conflicts in favor of the plaintiff. We must hold that defendants have failed to meet their burden of establishing truth.

For the foregoing reasons we hold defendants are not entitled to a new trial or judgment n.o.v. on the defamation claims.

B. Intentional Interference with Prospective Contractual Relations

The classic statement of the elements of an action for intentional interference with prospective contractual relations is found in Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895 (1971). The burden is on the plaintiff to establish the following:

a) the existence of a proper prospective contractual relationship between the plaintiff and a third party,
b) the defendant must act for the purpose of causing the
specific type of harm to plaintiff,
c) the act must be unprivileged, and
d) actual harm must result.

There is little dispute concerning elements (a) and (d). Appellants make a feeble attempt to argue lack of harm based on the statement in Sears’ letter to Geyer informing him that the decision to withdraw their offer was based “at least in part” on the unfavorable reports. However, the evidence was clearly sufficient for the jury to conclude that the negative remarks of Steinbronn, both directly and through Service Review, were a cause of Sears’ action. Indeed no evidence suggesting any other reasons for their decision was adduced.

Appellants’ main arguments go to intent and privilege. Appellants contend that the evidence fails to establish that Steinbronn acted with any “bad motive” toward Geyer. However, there was considerable evidence adduced by plaintiff that the relations between him and Steinbronn were quite hostile. This evidence could support an inference of ill will.

Moreover, even if we were to accept defendants’ reading of the record, “ill will” or “bad motive” per se are not required to establish the intent element. This Court held in Yaindl v. Ingersoll-Rand Co., 281 Pa.Super. 560, 422 A.2d 611 (1980), that the intent to cause harm element “must be understood as requiring only an intention to interfere with the plaintiff’s prospective contractual relation and not malevolent spite by the defendant.” 281 Pa.Super. at 581, n. 11, 422 A.2d at 622, n. 11. Obviously it will be the rare defendant who boldly declares that he in fact did intend to interfere with the plaintiffs prospective contractual relation. Therefore, the jury usually will be called upon to draw an inference from circumstantial evidence. The defendant's state of mind and possible motives are certainly relevant to the inquiry even if ill will per se is not a requisite. The record does not entitle us to conclude as a matter of law that there was no basis for a finding of intent.

With respect to the privilege issue, defendants cite us to Restatement (Second) of Torts § 772, which provides:

One who intentionally causes a third person not to perform a contract or not to enter into a prospective contractual relation with another does not interfere improperly with the other’s contractual relation by giving the third person:
(a) truthful information, or
(b) honest advice within the scope of a request for the advice.

Appellants repeat their claim made with respect to the defamation counts that Steinbronn simply stated the truth as he believed it to be at the time. Once again we emphasize that the jury found to the contrary. There was sufficient evidence for the jury to find that many of Steinbronn’s statements were not true and they were not made with a reasonable belief that they were true. Indeed there is evidence to support a finding that Steinbronn knew some of them were false. There is further no sign of a cavalier disregard by the jury of evidence favorable to appellants which would entitle us to hold the verdict against the weight of the evidence. The jury observed the witnesses and their demeanor and is therefore in the best position to assess credibility. We will not disturb the verdict on the intentional interference with prospective contractual relations count.

II. Charge to the Jury

A. Defamation

Appellants argue that the trial court erred in failing to charge the jury in accordance with its points for charge 8, 10 and 26. In considering challenges to the trial court’s instructions to the jury, we must examine the charge in its entirety to determine whether the jury has been misled or prejudiced; error cannot be based on isolated excerpts. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314 (1984). The failure to charge in the precise words requested by a party is not error where the instruction given is complete and correct. Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983).

The instructions requested by appellants concern the subjects of malice and privilege. Point 8 states that a defamation plaintiff must prove malice. Point 10 states that a non-negligent publication on a conditionally privileged occasion does not give rise to liability. Point 26 states that in a conditionally privileged occasion the absence of malice is presumed and the plaintiff has the burden of proving abuse of privilege.

With respect to point 8, it is the law in Pennsylvania that a private figure defamation plaintiff may meet his burden by proving that the defamatory matter was published with either malice or negligence. Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72 (1984); 42 Pa.C.S. § 8344. The court properly refused Point 8 because it erroneously states the law. We further find that the trial court properly instructed the jury on the plaintiffs burden of proof. Without actually using the word “malice,” the court clearly instructed that the plaintiff must show that the publication was made intentionally, recklessly or negligently, defining all three. As the trial court observed in its opinion, the term “malice” has been a perennial source of confusion in the law of defamation. The court instead gave a carefully crafted charge which stated the law clearly as well as correctly.

With respect to Points 10 and 26, we hold that the court properly instructed the jury on conditional privilege and its abuse. Point 10 is somewhat ambiguous and in any case it is superfluous. To the extent it attempts to define when a conditionally privileged occasion exists, it is unnecessary because the court determined at trial that a conditional privilege existed and the plaintiff conceded that the defamatory statements were conditionally privileged. To the extent that Point 10 is a request for an instruction that “reckless or wanton disregard of plaintiffs rights” or negligence (“want of reasonable cause to ascertain the truth or falsity of the statement”) are required to show abuse of a conditional privilege, this subject was adequately and correctly covered in the court’s charge. See Hepps; Beckman.

The trial court also correctly instructed the jury that the plaintiff has the burden of showing abuse of a conditional privilege. See R. 771a. The court did not use the language of Point 26 because it believed that the introduction of the problematic word “malice” would only serve to confuse and mislead. We agree and commend the trial court for its insightfulness.

B. Intentional Interference with Prospective Contractual Relations

Appellants argue that the trial court erred by failing to charge the jury according to Point 29. Point 29 states that in an action for intentional interference with prospective ■ contractual relations the plaintiff has the burden of proving that the defendant’s conduct was not privileged. We do not address the merits of this question because it has not been preserved for appeal. Defendants failed to object in the trial court to the failure to charge on Point 29 or in any other way to the court’s charge on intentional interference with prospective contractual relations. See R. 797a-799a. Therefore the issue is waived. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1979).

III. Damages

A. Compensatory Damages and Loss of Consortium

Appellants contend that the compensatory damages awarded were excessive and not supported by the evidence. The assessment of damages is peculiarly within the province of the jury and the jury’s award will not be upset on appeal unless it is so excessive as to shock the conscience of the court or it is clearly based on partiality, prejudice or passion. DeSimone v. City of Philadelphia, 380 Pa. 137, 110 A.2d 431 (1955); Pratt v. Stein, 298 Pa.Super. 92, 444 A.2d 674 (1982); Padula v. Godshalk, 192 Pa.Super. 618, 161 A.2d 919 (1960).

Appellants make several specific arguments in support of their claims. They argue that the evidence of pecuniary harm, which was primarily the wages plaintiff lost as a result of not being hired by Sears, was too conjectural and speculative to support an award of damages because the evidence established that Mr. Geyer was unable to hold a job long enough to realize such benefits which were measured over a seven year period (up until the time of trial). With regard to the noneconomic (“pain and suffering”) elements of damages, appellants argue that Mr. Geyer’s alcohol problems began long before he was employed with Miley and that the psychiatric evidence was inconclusive. With regard to the loss of consortium damages awarded Mrs. Geyer, appellants contend that the plaintiffs’ marital relationship had already deteriorated and Mrs. Geyer suffered no further harm as a result of appellants’ conduct.

We hold that none of these factors warrant disturbing the jury’s award of compensatory or loss of consortium damages. The jury was aware of the facts surrounding Mr. Geyer’s employment history and it was within their province to weigh that evidence in evaluating the claim of lost wages. We find no support for a finding that the jury misapprehended or disregarded the evidence. Furthermore, it is not necessary that damages be determined with mathematical certainty. Lokay v. Lehigh Valley Cooperative Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985); Duquesne Light Co. v. Rippel, 329 Pa.Super. 289, 478 A.2d 472 (1984).

With respect to the non-pecuniary elements of damage, we agree that the plaintiffs may not have started off in the best of circumstances, but a defendant must take the plaintiff as he finds him and damages are available for the aggravation of a previously existing condition. Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965). There was evidence adduced at trial from which the jury could have found that the loss of the Sears job precipitated a worsening of Mr. Geyer’s alcoholism which sent his personal life into a tailspin and caused the plaintiffs’ marriage to deteriorate markedly. Where the jury’s determination of damages is based on its assessment of the weight of conflicting evidence the appellate courts should not interfere. See Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953); Lokay v. Lehigh Valley Cooperative Farmers Inc.; Delahanty v. First Pennsylvania Bank N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). Finally, the absolute amount of the verdict is not facially exorbitant or disproportionate to the damages claimed. We hold that the trial court committed no abuse of discretion in refusing to set aside or reduce the award of damages.

Appellants have also included in their brief an argument that the trial court erred in refusing to charge the jury on certain points relating to speculative or conjectural damages. We will not consider this claim because it was not set forth in the statement of questions involved. Rago v. Nace, 313 Pa.Super. 575, 460 A.2d 337 (1983); Pa.R.A.P. 2116(a).

B. Punitive Damages

Appellants also attack the award of punitive damages, likewise contending that they were “excessive and were not supported by the evidence.” We note at the outset that the punitive damage award was one-half of the compensatory damage award which we have upheld, so this case does not raise the issue of a punitive damages award disproportionate to the award of compensatory damages. Cf. Walder v. Lobel, 339 Pa.Super. 203, n. 3, 488 A.2d 622, 627 n. 3 (1985) (“the law is unclear as to the relationship between compensatory damages and punitive damages;” collecting cases).

We therefore focus on the question whether there was sufficient evidence to support the jury’s award of punitive damages. Since we must have a yardstick against which to measure the evidence, this allegation of error necessarily leads us into an examination of the proper standard for awarding punitive damages. The trial court charged the jury in accordance with Restatement (Second) of Torts § 908 (1977). Under the Restatement formulation, punitive damages are available where there has been “outrageous conduct,” i.e. acts done with an evil motive or with reckless indifference to the rights of others. Similar language appears in our case law. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Delahanty v. First Pennsylvania Bank; Smith v. Brown, 283 Pa.Super. 116, 423 A.2d 743 (1980).

However, Feld, Delahanty and Smith are not defamation cases. Because punitive damages in defamation actions are in effect a punishment for speech, the formulation of the appropriate standard has been influenced by constitutional considerations. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011, 41 L.Ed.2d 789 (1974), the United States Supreme Court held, “[T]he States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth.” This is, of course, the familiar “actual malice” formulation of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

The scope of the Gertz holding was not clear. Some jurisdictions viewed the Gertz standard as applicable only to suits against the news media; others applied the Gertz standard to non-media defendants as well. Compare General Motors Corp. v. Piskor, 277 Md. 165, 352 A.2d 810 (1976); Gibby v. Murphy, 73 N.C.App. 128, 325 S.Ed.2d 673 (1985); and Fleming v. Moore, 221 Va. 884, 275 S.E.2d 632 (1981)(applying Gertz to non-media defendant cases) with Roemer v. Retail Credit Co., 44 Cal.App.3d 926, 119 Cal. Rptr. 82 (1975); Vinson v. Linn-Mar Community School District, 360 N.W.2d 108 (Iowa 1984); and Greenmoss Builders v. Dun & Bradstreet Inc., 143 Vt. 66, 461 A.2d 414 (1983), aff'd on other grounds, 472 U.S.-, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (holding Gertz not applicable to cases not involving public figures or media defendants).

The United States Supreme Court granted certiorari in Greenmoss Builders and clarified the scope of Gertz, but the Court eschewed the media-nonmedia distinction. Instead, in Dun & Bradstreet v. Greenmoss Builders, 472 U.S.-, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), a plurality of the Court held that “permitting recovery of presumed and punitive damages in defamation cases absent a showing of ‘actual malice’ does not violate the First Amendment when the defamatory statements do not involve matters of public concern.” Id. at 2948.

The instant case does not involve speech on a matter of public concern. Therefore, under Greenmoss Builders the actual malice standard is not mandated as a matter of federal constitutional law. However, since Greenmoss Builders was decided strictly within the context of whether the First Amendment imposed restrictions on state defamation law, a state is free to adopt actual malice as the standard for awarding punitive damages in defamation actions not involving statements of public concern or to continue using actual malice if it has already been doing so, even though the Constitution does not require it.

The decisions of our courts in defamation cases have not been consistent. In Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 485 A.2d 374 (1984), prob. juris, noted, — U.S. -, 105 S.Ct. 3496, 87 L.Ed.2d 628 (1985), our Supreme Court applied the actual malice holding of Gertz. Hepps, however, involved speech on a public issue. Although Hepps is instructive on the punitive damages question now before us, Hepps is not entirely apposite to the case sub judice. The Pennsylvania Supreme Court’s decision in Hepps predates the United States Supreme Court’s decision in Greenmoss Builders. Hepps is explicitly based on the United States Supreme Court’s Gertz opinion which required proof of actual malice to justify a punitive damages award, Hepps, 506 Pa. at 330, 485 A.2d at 388, and which did not articulate a distinction between defamation actions involving public concerns and those involving private concerns. See Greenmoss Builders. Moreover, the defamatory speech in Hepps involved a matter of public interest (five investigative articles printed in a newspaper of general circulation) whereas the defamatory remarks in the instant case concern a matter of solely private interest.

In cases not involving speech on matters of public concern, the decisions of this Court have been conflicting. In Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 423, 480 A.2d 1101, 1106 (1984), we “observe[d] that Pennsylvania has embraced Section 908 of the Restatements (Second) of Torts and the Comments thereunder as to punitive damages.” Two months later, though, this Court cited the Gertz actual malice standard for punitive damages in a private defamation case, Agriss v. Roadway Express Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). The discussion of punitive damages in Agriss is arguably dictum, since Agriss was an appeal from an order entering a nonsuit. Obviously, no damage issues were ripe at that point.

The most recent statement of our courts on the issue merely compounds the confusion. In Walder v. Lobel, 339 Pa.Super. 203, 211, 488 A.2d 622, 626 (1985), this Court held, “To justify punitive damages, the plaintiff must show actual malice on the part of the defendant” (emphasis added). However, this apparently clear statement is made somewhat ambiguous because the court cited as authority for this statement both Feld, which applied section 908 of the Restatement, and Hepps, which applied the actual malice standard of Gertz. The source of the ambiguity may be a pre-New York Times v. Sullivan decision of the Pennsylvania Supreme Court, Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963), which described the evil motive/outrageous conduct standard of the Restatement as “actual malice.” Because the court in Walder did not elaborate further on its holding, it is not completely clear which meaning of “actual malice” was intended.

As we have noted above, the effect of the United States Supreme Court’s decision in Greenmoss Builders is to leave the determination of the appropriate standard for awarding punitive damages in defamation actions in the hands of the individual States. Therefore, although New York Times actual malice is not constitutionally required, we may choose to adopt it for other reasons. After careful consideration of the issue we have concluded that knowledge of or recklessness as to falsity of the publication, i.e. actual malice as defined in New York Times v. Sullivan, is the proper standard for awarding punitive damages in defamation cases not involving speech on matters of public concern.

There are two threads which run consistently through the otherwise jumbled body of law on punitive damages. The first is that punitive damages are appropriate only where there has been conduct more egregious than that which merely establishes the underlying tort. The second is that the purpose of punitive damages is to punish the egregious wrongdoer and to deter the defendant and others from engaging in such conduct. See Delahanty v. First Pennsylvania Bank N.A., 318 Pa.Super. 90, 128-30, 464 A.2d 1243, 1262-63 (1983). Punishment focuses more directly on the individual and carries with it the idea of moral blameworthiness. Deterrence, on the other hand, involves the social goal of preventing further harm by imposing an additional economic disincentive on the wrongful conduct.

Both meanings of the word “malice” define conduct more egregious than the ordinary negligence required to establish liability in private plaintiff-private defendant defamation cases. However, the two kinds of malice address different aspects of the defendant’s conduct. It has been said that ill-will malice of the type described in section 908 of the Restatement, which we shall describe hereinafter as “common law malice,” refers to the defendant’s attitude towards the plaintiff whereas actual malice as defined in New York Times v. Sullivan refers to the defendant’s attitude toward the truth. See Note, Punitive Damages and Libel Law, 98 Harv.L.Rev. 847 (1985).

The question therefore becomes one of which type of conduct we wish to punish and deter through the vehicle of punitive damages. The principle that punitive damages are only appropriate for conduct which is intentionally wrongful and therefore morally blameworthy at first suggests the conclusion that common law malice is the appropriate standard, because the concept of “ill will” directly connotes intent to harm the plaintiff. See J. Sales, Punitive Damages: The Doctrine of a Bygone Era, at 5-6 (1984), citing Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S.Cal.L.Rev. 1, 21-22 (1982). Indeed, actual malice has been described as “less evil” than common law malice. K. Redden and L. Schlueter, Punitive Damages 80 (Cum.Supp.1983).

We disagree with this view and hold that the actual malice standard defines more closely the kind of intentionally wrongful conduct which should be the subject of our concern in imposing punitive damages in defamation actions. Although the “ill will” component of common law malice clearly involves conduct directly intended to harm the plaintiff, actual malice conduct is equally intentional with respect to the falsity of the publication. This is so whether the finding of actual malice is based on knowing or reckless conduct. Knowingly publishing a falsehood definitionally involves actions of an intentional nature. Recklessness, while ostensibly distinguishable from intentional conduct, has been defined strictly in this context as entertaining serious doubts about the truth of the publication. St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). This high level of scienter suggests a deliberate decision to proceed in the face of known risks which we believe closely approaches intentional conduct.

Although both the deliberate lie and the malevolent attack are morally blameworthy, we believe that our standard for assessing punitive damages in defamation actions should focus on the former. In its essence the law of libel is concerned with the harm which may be done to a citizen’s reputation by the communication of false and defamatory statements concerning him. The wrongful act committed by the defamer, i.e. the act which causes the harm to the plaintiff, is therefore the publication of the libelous words, not the holding of a malevolent or spiteful attitude towards the plaintiff. A hateful attitude towards the plaintiff without more may be thought of as a non-actionable opinion. Indeed, since truth is an absolute defense the person who communicates a statement solely for the most despicable motives escapes liability if the statement is true. In other words, the law should focus not on attitudes but on the nature of the defendant’s actions.

It has also been said that the defendant who acts with actual malice may not intend to hurt the plaintiff at all. For example, a publisher may go ahead with a questionable story which he feels will sell more newspapers, or in the private context an employee may seek to improve his chances for a promotion. See K. Redden and L. Schlueter, supra, main volume at § 13.15. However, even if the immediate motive of the deliberate or reckless liar may not be to harm the plaintiff, he does at least have reason to know that harm may result from his conduct. Therefore we may characterize his conduct as a deliberate choice to seek his own advantage regardless of the possible consequences to others or a decision that the benefits to him outweigh the potential risks that others will be harmed and he will be held accountable. Such conduct of a calculated nature seems to be precisely the kind of wrongfulness to which we should attach a “punitive” sanction.

For similar reasons we believe that the actual malice standard better meets the goals behind the policy of deterrence. The most meaningful kind of deterrence is obviously that which directly addresses the wrongful act itself, which as we have noted above involves the communication of false defamatory statements about the plaintiff. “Ill will” is not easily amenable to regulation. Courts and laws cannot realistically “deter” someone from disliking or hating another. However, the law can encourage a person to be more careful about what he says publicly about another, including the object of his ill will.

In the context of determining when liability should be imposed, one commentator has reasoned that the social interest in a communication is not diminished by the fact that the speaker may be motivated by ill will toward the plaintiff, so long as the speaker is not knowingly or intentionally lying. See R. Smolla, Let the Author Beware: The Rejuvenation of the American Law of Libel, 132 U.Pa.L. Rev. 1, 80 (1983). It seems that this reasoning may be applied to the assessment of damages as well, leading to the conclusion that the additional sanction of punitive damages should be imposed only where the defendant has intentionally lied or has acted in reckless disregard of the truth.

Although we hold that the actual malice standard applies, we nonetheless affirm the award of punitive damages because the only context in which the issue is brought before us is sufficiency of the evidence. As we have discussed above in connection with the absence of a privilege to interfere with a prospective contractual relation (see supra at 13), there was evidence which would support a finding of Steinbronn’s knowledge of the falsity of the statements. Hence there was sufficient evidence of the actual malice required to support an award of punitive damages. Cf. Mazer v. William Bros. Co., 461 Pa. 587, 337 A.2d 559 (1975); Lobianco v. Property Protection Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981) (appellate court may affirm trial court on any grounds, including grounds not relied on below).

PLAINTIFFS’ CROSS-APPEAL

We have reviewed the record with respect to the issues raised by plaintiffs’ cross-appeal and find that the opinion of the trial court, at pp. 35-44, adequately addresses these issues. We therefore affirm the trial court’s denial of plaintiff’s various requests for relief.

CONCLUSION

The trial court is affirmed.

SPAETH, P.J., files concurring statement.

TAMILIA, J., joined Judge SPAETH’s concurring statement on the issue of punitive damages but otherwise joined Judge BECK’s Opinion.

SPAETH, President Judge,

concurring:

I concur in the result. I am unable to join the majority’s discussion of the punitive damages issue, for it suggests that the issue is novel and that therefore we must discuss and decide it. In fact the Supreme Court has already discussed and decided whether Pennsylvania law requires proof of actual malice (knowing falsehood or reckless disregard of the truth) or common law malice (spite or ill will) for the recovery of punitive damages. The law requires actual malice, and it has for many years. See Hepps v. Philadelphia Newspapers, Inc., 506 Pa. 304, 331-332, 485 A.2d 374, 388 (1984) (“To justify punitive damages, the plaintiff is called upon to satisfy the ‘actual malice’ test.”); Montgomery v. Dennison, 363 Pa. 255, 270, 69 A.2d 520, 528 (1949) (“malice does not necessarily mean a particular ill-will toward another; it comprehends in certain cases ‘recklessness of consequences and mind regardless of social duty’ ”) (emphasis in original). Dun & Bradstreet v. Greenmoss Builders, — U.S.-, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985), in no way affected this principle, and is in my view irrelevant to our decision here.

TAMILIA, J., joined on the issue of punitive damages but otherwise joined Judge BECK’s opinion.

      . Hereinafter the word “appellants” refers only to these defendants unless otherwise specified.

      . Appellants’ brief states as a separate issue "Defendants are entitled to judgment n.o.v.” We believe this question is properly treated in conjunction with the foregoing claims, especially appellants’ challenges to the sufficiency of the evidence.

      . Plaintiffs raise no issues relating to the grant of a directed verdict in favor of defendant Miley Detective Agency Inc.

      . Steinbronn maintains that this letter was drafted without his authorization and his signature was forged.

      . At time of trial, plaintiffs were required to show special harm. But see Agriss v. Roadway Express Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984) adopting rule of Restatement (Second) of Torts § 569 (1977) that all libels are actionable without proof of special harm.

      . Damages for aggravation of appellee’s alcoholism are premised solely upon appellee’s claim regarding intentional interference with his prospective contractual relationship with Sears. Such damages cannot be awarded as a result of appellee’s defamation claim since ”[i]n a defamation action, damages are assessed [only] based upon the harm an individual experiences to his reputation____” Graham v. Today’s Spirit, 503 Pa. 52, 58, 468 A.2d 454, 458 (1983) (emphasis added). Because damages for aggravation of alcoholism cannot “ 'give the innocent and injured plaintiff a public vindication of his good name,’ ” Graham, 503 Pa. at 57, 468 A.2d at 45 (citation omitted), such damages would violate the mandate of Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974), that "state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved."

      . See R. Sack, Libel, Slander, and Related Problems 349 (1980).

      . Justice Powell announced the judgment of the Court in an opinion joined by Justices Rehnquist and O’Connor. The Chief Justice concurred, stating that he would simply hold that Gertz did not apply because the allegedly defamatory statements involved did not relate to a matter of public concern. Justice White concurred on the alternative grounds that Gertz should be overruled or because the defamatory statement in question did not deal with a matter of public concern. Justice Brennan wrote a dissenting opinion joined by Justices Marshall, Blackmun and Stevens.

      . Since Hepps involved a matter of public concern, the actual malice standard for punitive damages would apply to Hepps under the reasoning of Gertz or Greenmoss Builders.

      . One apparent exception to this principle is in the public issue area, where Gertz seems to suggest that the same standard which must be met to establish liability (actual malice) is also sufficient to permit an award of punitive damages. One commentator proposes that in public, issue cases punitive damages should be awarded only where the plaintiff proves both actual malice and ill-will, or "common law” malice. See Note, Punitive Damages and Libel Law, 98 Harv.L.Rev. 847, 860 (1985). This issue was not addressed by the Supreme Court in Greenmoss Builders; the opinion of the plurality does not suggest that a standard higher than actual malice would be required to award punitive damages in a case involving speech on a public issue.

      . See Note, Punitive Damages and Libel Law, supra at 854 ("the need to demonstrate intentional wrongdoing is not implicit in the actual malice standard as it is in the common law malice standard”).

      . A similar concept is included within the meaning of common-law malice. The Restatement includes in its definition of “outrageous conduct” conduct involving the defendant’s "reckless indifference to the rights of others.” Restatement (Second) of Torts § 908(2)(1977). This shows that the two kinds of malice overlap significantly but does not affect our conclusion that actual malice is the better standard.

       President Judge SPAETH wrote this concurring statement before the expiration of his term on the court.


source: Caselaw Access Project

author: ROWLEY, Judge: WIEAND, Judge,

license: Public Domain

text:
    506 A.2d 918
    Jerry Wayne WILLIAMS, Appellee, v. Franklin Andrew MILLIKEN and Rhoda Pearl Milliken, husband and wife, and Frank Milliken and Cindy Milliken, husband and wife, Appellants.
    Superior Court of Pennsylvania.
    Argued May 13, 1985.
    Filed Jan. 24, 1986.
    Reargument Denied April 8, 1986.

      J. Philip Bromberg, Pittsburgh, for appellants.
    David F. Megnin, Kittanning, for appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from the trial court’s Order determining that Jerry Wayne Williams, appellee, is the natural father of two minor children, Jeremiah James Fornell and Miranda Nicole Milliken a/k/a Miranda Nicole Fornell, and granting legal custody of the children to appellee. We find that appellee failed to meet his burden of proving that he was the father of Jeremiah and that the trial court did not apply the proper burden of proof to appellee’s claim of paternity of Miranda. Accordingly, we reverse the trial court’s order as to the paternity of Jeremiah and vacate the order as to Miranda and remand for further proceedings and application of the proper burden of proof as to the paternity of Miranda.

Sherry Noreen Fornell, the natural mother of Jeremiah and Miranda, died on April 23, 1983 from complications following the birth of Miranda on April 13, 1983. Following Sherry’s death, Miranda was in the physical custody of Franklin J. and Cindy Milliken, Sherry’s brother and sister-in-law. In April of 1984, Franklin J. and Cindy Milliken separated and since that time, Miranda has been in the physical custody of Franklin A. and Rhoda Milliken, her maternal grandparents. Jeremiah Fornell, born October 2, 1978, has resided with Franklin A. and Rhoda Milliken for the majority of his life, and they have been his primary caretakers.

On August 31, 1983, appellee filed a “Petition for Custody”, naming Franklin A. and Rhoda Milliken and Franklin J. and Cindy Milliken as defendants, wherein he alleged that he was the father of both Jeremiah and Miranda, that he and Sherry Fornell had entered into a common law marriage, and that he was entitled to custody of both children. On October 29, 1983, appellants filed an Answer to appellee’s petition for custody, denying that appellee was married to Sherry Fornell and denying that appellee was the father of Jeremiah and Miranda.

On November 30, 1983, appellee filed a motion requesting that Franklin A. and Rhoda Milliken and Franklin J. Milliken submit to Human Leukocyte Antigen (HLA) blood testing. The motion was granted. On December 5, 1983, the Order of November 30, 1983 granting the request for the HLA blood tests were stayed pending resolution of a rule to show cause why that Order should not be vacated. Prior to resolution of the issue regarding blood tests, hearings were held on January 31, March 26 and August 2, 1984, regarding the alleged paternity of appellee and custody of Miranda and Jeremiah. Appellee presented the following evidence relevant to the issue of his paternity.

Appellee testified that he first met Sherry Fornell in April of 1976 or 1977 in Illinois and that they began living together shortly thereafter. (N.T., January 31, 1984 at 64.) Appellee admitted that Sherry was married to Stewart Fornell when he first met her and that she did not obtain a divorce from him until sometime in 1980. (N.T., January 31, 1984 at 69.) Similarly, appellee admitted that he was married to Lauraleen Garland when he met Sherry Fornell and that they were not divorced until May 5, 1978. (N.T., March 26, 1984 at 28.)

Appellee further admitted that he had a substantial criminal record and that he was incarcerated in June of 1978 following his conviction for burglary of a drug store in Wisconsin. (N.T., January 31, 1984 at 88-89, N.T., March 26, 1984 at 18-20.) At the time he was imprisoned, Sherry was six months pregnant with Jeremiah. (N.T., January 31, 1984 at 65-66.) Appellee served four and one-half months of a six month sentence for the Wisconsin burglary before being extradicted to Illinois in November of 1978 regarding violation of his parole in that state. Upon his extradition to Illinois, he was sentenced to three years imprisonment for two counts of burglary and forgery stemming from his unauthorized entry into an animal hospital. (N.T., January 31, 1984 at 88-89, N.T., March 26, 1984 at 18-19.) Appellee was incarcerated for eighteen months from November of 1978 to June of 1980, at which time he was released on parole. During this period, he stated that Sherry visited him when he obtained work release and they had sexual intercourse. (N.T., March 26, 1984 at 45, 68.) Appellee was apparently arrested again in June of 1980, and in August of 1980 he was again convicted of burglary in the state of Illinois and sentenced to four years imprisonment. (N.T., March 26, 1984 at 23-26.) Appellee was then imprisoned from August 1980 until December of 1981, at which time he was again released on parole. (N.T., March 26, 1984 at 25-26.)

When appellee was released from prison in December of 1981, he traveled to Armstrong County, Pennsylvania to visit with Sherry Fornell at the home of Rhoda and Franklin A. Milliken. (N.T., January 31, 1984 at 67.) Sherry had moved back to Pennsylvania in October of 1978 shortly after the birth of Jeremiah. Appellee testified that he then returned to Illinois to collect his belongings and to have his parole transferred. He stated that he returned to Pennsylvania in February or March of 1982 and that he and Sherry resided in a garage apartment for a short period of time. He testified that they subsequently moved to a trailer in Adrian, Pennsylvania, and then to a trailer in Cowansville, Pennsylvania, where he resided with Sherry until her death in April of 1983. (N.T., January 31, 1984 at 67.)

Appellee also stated that Sherry had a tubal pregnancy in 1981 and an abortion sometime in 1979 and that he believed that she had become pregnant by him in both instances. (N.T., January 31, 1984 at 68, N.T., March 26, 1984 at 68.) Appellee also testified that he and Sherry had sought fertility counseling in 1982, that Sherry became pregnant again several months later, and that her due date was July 4, 1983. (N.T., January 31, 1984 at 69.) Thus, Miranda was conceived during October or November of 1982. Although appellee considered himself as being married to Sherry, he stated that he did not formally marry her because it would have reduced monthly public assistance payments that she received. (N.T., January 31, 1984 at 71-72.)

Appellee testified that he visited Sherry every day while she was in the hospital regarding the birth of Miranda, April 12 through April 23, 1983. (N.T., March 26, 1984 at 45-46.) In June of 1983, appellee began living with Agnes Mowry and her eleven year old son, Carl, in Kittaning, Pennsylvania. He stated that he intends to marry Ms. Mowry. (N.T., January 31, 1984 at 73.)

Appellee admitted that he received a subpoena directing him to bring copies of his tax returns prior to January of 1984 and copies of his divorce decrees to court. However, he stated that he did not produce these records because he was unable to find them; he admitted that he had made no attempts to secure the records requested. (N.T., January 31, 1984 at 82-83, N.T., March 26, 1984 at 39, 54-55.)

Harry T. Blaney, secretary-treasurer of Paul’s Auto Parts in Armstrong County, testified that appellee has been employed at Paul’s since May 12, 1982 as a counter-clerk. (N.T., January 31, 1984 at 12-13.) He stated that appellee listed Sherry as his wife and Jeremiah as his child for health insurance purposes and that appellee initially claimed three exemptions for tax withholding purposes; however he changed his exemption status to zero in January of 1983. (N.T., January 31, 1984 at 13-16.)

Peggy Ann Spence, a family service worker for the Headstart program in Armstrong County testified that Jeremiah was enrolled in Headstart sometime in October of 1982. (N.T., January 31, 1984 at 28.) She stated that she was required to visit the home of Sherry Fornell every second week. (N.T., January 31, 1984 at 28.) She further stated that Sherry looked pregnant in October or November of 1982 and that during one visit with Sherry, she noticed bruises on her arm. (N.T., January 31, 1984 at 32-35.) Ms. Spence testified that Sherry told her that appellee had shaken her because he didn’t believe that the baby she was carrying was his child. (N.T., January 31, 1984 at 35-39.) Ms. Spence also stated that Sherry told her that appellee was the father of Jeremiah. (N.T., January 31, 1984 at 30.)

Tracy Elaine Johns, a distant relation of Sherry’s, testified that Sherry told her on numerous occasions, that appellee was Jeremiah’s father. (N.T., January 31, 1984 at 43.) Anna Jane Cook, a casual acquaintance of Sherry’s also testified that when she met Sherry and appellee at the Vernon Hotel in March of 1983, Sherry told her she was married to appellee. (N.T., January 31, 1984 at 49-50.) Ms. Cook also stated that Sherry indicated that she was pregnant with appellee’s baby and that they had a four-year old child at home. (N.T., January 31, 1984 at 51-54.)

Rosalie Lee Waugaman testified that she attended Bingo with Sherry and that Sherry had also told her that Jeremiah was appellee’s son and that appellee was the father of the baby she was carrying. (N.T., January 31, 1984 at 54-56.)

Terry Lynn Long, the registered Records Administer at Armstrong County Memorial Hospital, stated that Sherry Fornell was admitted to the emergency room on April 12, 1983, that she was approximately six months pregnant at that time, and that she was having contractions. (N.T., March 26, 1984 at 4-5.) The Emergency Department records show that Jerry Williams was first listed as “husband” in the “nearest relative or friend” category, but that the word was then crossed out and the word “friend” was typed in that space. (Petitioner’s exhibit # 6.) Sherry was transferred to Magee-Women’s Hospital on April 13, 1983. (N.T., March 26, 1984 at 6-8.) The relevant records regarding Sherry Fornell’s stay at Magee-Women’s Hospital and Miranda’s birth were admitted through the Hospital’s custodian of records. (N.T., March 26, 1984 at 6-10.) The registration records from the Hospital list Jerry Williams as a “friend” (Petitioner’s exhibit #7) and the birth record lists Miranda’s last name as “Fornell”. (Petitioner’s exhibit # 8.) However, the Birth Record also indicates that the information regarding Miranda came from the baby’s grandmother, Rhoda Milliken, and not Sherry Fornell herself. In a letter to the Bureau of Vital Statistics in New Castle, Pennsylvania, from the Records Department at Ma-gee-Women’s Hospital dated April 25, 1983, it was stated that the mother was unable to be interviewed regarding the baby because of her medical condition. The letter further stated that Jerry Wayne Williams had subsequently called the Hospital and stated that he was the father of Miranda. (Petitioner’s exhibit # 9.)

Appellants presented the following evidence relevant to appellee’s paternity at the hearings in this case. Frank Yeropoli, an employee at the Division of Vital Records in New Castle, Pennsylvania, testified that Miranda’s birth certificate listed her last name as “Milliken” because of the confusion surrounding Miranda’s birth and the inability of the medical records department at Magee-Women’s Hospital to give him definite information. (N.T., August 2, 1984 at 18-23.)

Robert Page, an Income Maintenance Manager for the Armstrong County Board of Public Assistance, testified that Sherry Fornell first received assistance for Jeremiah from November of 1978 until July of 1980. (N.T., August 2, 1984 at 30-32.) Mr. Page stated that Sherry listed Jerry Williams, Chicago, Illinois, Cook County Jail, as Jeremiah’s father on her November 1978 application. (N.T., August 2, 1984 at 34.) On subsequent reviews in June of 1979 and December 10, 1979, she again listed Jerry Williams as Jeremiah’s father. (N.T., August 2, 1984 at 34.) In December of 1981, on reapplication for assistance, Sherry again listed appellee as the father of Jeremiah, however, upon review in February of 1982, Sherry listed Thomas Huse, Hazelcrest, Illinois, as Jeremiah’s father. (N.T., August 2, 1984 at 35.) Upon subsequent review in June of 1982, Sherry again listed Thomas Huse as Jeremiah’s father. (N.T., August 2, 1984 at 35.)

Franklin A. Milliken testified that he and Rhoda Milliken were married in January of 1951, after Rhoda obtained a divorce from her previous husband. (N.T., August 2, 1984 at 77.) However, they had been living together for a period of time prior to their marriage and it was during that period that both Franklin J. and Sherry were conceived and born. (N.T., August 2, 1984 at 77-78.) After he married Rhoda, he instituted proceedings by which he formally adopted both children. (N.T., August 2, 1984 at 78.)

Franklin A. testified that Sherry married Stewart Fornell in September of 1973 and that they were divorced in July of 1980. (August 2, 1984 at 55-56.) He testified that he and his wife traveled to Chicago, Illinois in October of 1978, shortly after Jeremiah’s birth, and that they returned to Pennsylvania thereafter with Sherry and Jeremiah. (N.T., August 2, 1984 at 57.) Franklin testified that during the period between December of 1978 through November of 1981. Sherry traveled to Chicago with Jeremiah for a one month period in December of 1978 and again for an eight month period from April to November of 1980. Sherry made other trips to Chicago during this period, however, Jeremiah remained with his grandparents. (N.T., August 2, 1984 at 57-59.)

Franklin A. testified that Sherry rented an apartment in Armstrong County at the Olinger residence in February of 1982. (N.T., August 2, 1984 at 59.) Franklin A. also stated that Sherry rented a trailer in Adrian in August of 1982, and that she lived there until November of 1982, at which time she rented another trailer in Cowansville. (N.T., August 2, 1984 at 60.) Franklin admitted that Jerry and Sherry resided together from February 1982 until Sherry’s death in April of 1983. However, he also stated that Jeremiah resided primarily with he and his wife during that period of time. (N.T., August 2, 1984 at 59, 78-79.) He further testified that Jeremiah often stayed with Sherry in the fall of 1982 because Jeremiah was enrolled in a Head-start program that was nearer to Sherry’s trailer in Cowansville than it was to the Milliken home. (N.T., August 2, 1984 at 61-63.)

Franklin A. testified that Sherry gave birth to Miranda Nicole on April 13, 1983 and that Miranda was released into the custody of his wife, Rhoda, on May 30, 1985. (N.T., August 2, 1983 at 63-64.) Sherry’s brother, Franklin J. Milliken and his wife, Cindy, cared for Miranda until April of 1984, when they separated; since that time, Miranda has been residing with Franklin A. and Rhoda Milliken.

Walter Collar, a part-time bartender at Ab’s Tavern in Cowansville, testified that he knew both Sherry and appellee. (N.T., August 2, 1984 at 130-131.) He stated that Sherry came into the bar occasionally and that during hunting season, October of 1982, he saw her leave the bar with Donald Black. (N.T., August 2, 1984 at 132-133.) A few weeks later he saw Sherry with Donald Black a second time in the parking lot of the American Legion. (N.T., August 2, 1984 at 133.)

Donald Black testified that he had known Sherry since she was a young girl and that he first went out with her in August of 1982, a date he remembers because it was after his birthday. (N.T., August 2, 1984 at 136-137.) He testified that he met Sherry several times thereafter at Ab’s Tavern and at the American Legion. (N.T., August 2, 1984 at 137.) He stated that he went out with Sherry four or five times between the fall of 1982 and Christmas of that year, that they rode around back roads in his car and drank and that they had intercourse almost every time he saw her. (N.T., August 2, 1984 at 138-140.) He also testified that he did not use any form of birth control when he and Sherry were intimate. (N.T., August 2, 1984 at 143.) Mr. Black admitted that he was a good friend of the Milliken family, but he also stated that he testified regarding his intimacy with Sherry because it actually happened. (N.T. August 2, 1984 at 142-144.) '

On August 2, 1984, the trial court entered an Order directing Franklin A. Milliken, Rhoda Pearl Milliken, Franklin J. Milliken, Jeremiah Fornell, Miranda Fornell (Milliken), and Jerry Wayne Williams to submit to the drawing of blood for the purpose of conducting HLA blood tests. On August 13, 1984, appellants filed exceptions to the Order of August 2, 1984. Appellants’ exceptions were dismissed on September 4, 1984 and the above-mentioned persons were directed to comply with the Order directing them to submit to HLA testing. On October 12, 1984, the court further directed that appellants either refuse or agree to consent to the HLA blood tests. On October 19, 1984, appellants informed the court by letter that they refused to comply with the court’s Order. (Letter filed of record, November 6, 1984.)

On November 6, 1984, the trial judge filed an Opinion and Order determining that Jerry Wayne Williams was the natural father of Miranda and Jeremiah and awarding physical and legal custody of Miranda and Jeremiah to appellee. On November 16,1984, appellants filed a Motion to Stay the Order directing that custody of the children be transferred to appellee pending appeal to the Superior Court and a Motion for Reconsideration of that same Order. On November 16, 1984, the trial court denied the motion for reconsideration; however, the court also ordered that the November 6, 1984 Order granting full custody of Miranda and Jeremiah to appellee be partially stayed. The court’s order provided for shared custody of the children pending disposition of this appeal.

Appellants filed this timely appeal from the Order of November 6, 1984. On appeal, appellants contend that appellee failed to present sufficient evidence to rebut the strong presumption that Jeremiah was the son of Stewart Fornell, to whom Sherry was married at the time of his conception and birth. Thus, appellants argue that the trial court erred in finding that appellee was the father of Jeremiah. A careful review of the evidence presented convinces us that, as a matter of law, the evidence was insufficient to meet appellee’s burden of producing overwhelming evidence and that appellee failed to overcome the presumption that the father of Jeremiah was Sherry Fornell’s husband.

Sherry married Stewart Fornell in 1973 and they were not divorced until July of 1980. Jeremiah was born on October 2, 1978, during Sherry’s marriage to Stewart Fornell and thus, a strong presumption of legitimacy arises. Connell v. Connell, 329 Pa.Super. 1, 477 A.2d 872 (1984); Commonwealth ex rel. Spangler v. Spangler, 283 Pa.Super. 190, 423 A.2d 1053 (1980). “The burden of proof rested on [appellee] to show clear, direct, convincing and unanswerable evidence of non-access or lack of sexual intercourse or impotency [of the husband].” Connell v. Connell, 329 Pa.Super. at 6, 477 A.2d at 875; Commonwealth ex rel. Spangler v. Spangler, 283 Pa.Super. at 195, 423 A.2d at 1055 (1980) (Brosky, J., concurring). See Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). But compare P.B.C. v. D.H., 396 Mass. 68, 483 N.E.2d 1094 (1985) [where a child is conceived during the marriage, the husband of the child’s mother is presumed to be the father of the child, and a man other than the husband of the motjher has neither a constitutional nor common law right to rebijit the presumption; where a child is born to, but not conceived by, a married woman, a man other than her husband can rebut the presumption that the husband is the father of the child but must do so by proof beyond all reasonable doubt.] In Burston v. Dodson, 257 Pa.Super. 1, 390 A.2d 216 (1978), this Court explained that “unanswerable” cannot be read literally, but must be read to mean that proof of the husband’s non-access must be “ ‘exceedingly strong’ or ‘overwhelming’, i.e., more than proof that is clear and convincing but not so much more as to exclude every possibility.” Id., 257 Pa.Superior Ct. at 12, 390 A.2d at 221.

In the instant case, the period of Jeremiah’s conception would have been between December 1977 and January 1978. Appellee testified that he lived with Sherry Fornell in Chicago, Illinois from April of 1976 or 1977 until June of 1978. However, there was no evidence whatsoever presented by appellee regarding whether Sherry was in contact with Stewart Fornell at that time, whether they had separated, whether she had sexual relations with her husband or whether Stewart Fornell was living in the Chicago, Illinois area. Given the lack of evidence of record concerning Stewart Fornell’s whereabouts and contacts with Sherry during this period, it follows that appellee was bound to produce “overwhelming” evidence that he was the father of Jeremiah. See Burston v. Dodson, 257 Pa.Super. at 13, 390 A.2d at 222 (if the evidence of il legitimacy is of overwhelming weight, it may be sufficient to overcome and rebut the presumption of legitimacy). Appellee failed to produce such probative evidence. The only testimony that corroborated appellee’s own self-serving testimony that he was the father of Jeremiah was the testimony of three friends of Sherry and a family service worker. Each of these women testified that Sherry told them that Jeremiah was appellee’s son. Nonetheless, we do not find this testimony sufficient to overcome and rebut the presumption of legitimacy, especially where, as here, the mother of the child is unable to testify and there is no direct corroborative evidence. Jeremiah was conceived and born in Illinois and there was no testimony offered to support appellee’s contention that he resided with Sherry Fornell in Illinois. Jeremiah was given the last name of Fornell and appellee has not consistently acted as though he is Jeremiah’s father. Appellee has not contributed financially to the support of Jeremiah nor did he hold Jeremiah out as his son prior to the initiation of these proceedings. Moreover, Sherry consistently introduced Jeremiah as “Jeremiah Fornell” and that was the name he used at school.

In determining that appellee was the father of Jeremiah (and Miranda), the trial court initially noted that the natural mother’s death, coupled with the lack of HLA blood testing results, hampered the court “in making a conclusive determination.” However, the court relied on the above-mentioned testimony of Sherry’s friends and on appellee’s own testimony in concluding that appellee was the father of both Jeremiah and Miranda. (Opinion of House, J., November 6, 1984 at 4-5.) The trial court stated that the “[defendants have failed to produce any evidence which indicates that plaintiff is not the father of the children.” (Opinion of House, J., November 6, 1984 at 5.) The trial court did not discuss the burden of proof in its opinion, nor did it make a separate determination of paternity regarding each of the children herein involved. Moreover, the trial court stated that appellants were bound to show that appellee was not the father of Jeremiah. On the contrary, we find that appellee was bound to produce overwhelming evidencé that Sherry’s husband was not the father of Jeremiah in order to rebut the presumption of legitimacy. Our review of the record reveals that such evidence was not presented, and accordingly, the trial court erred in finding that appellee was the father of Jeremiah.

Appellant’s second contention is that appellee failed to meet his burden of proving that he was the father of Miranda. Specifically, appellants argue that paternity cannot be attributed to appellee because there was evidence offered to prove that Sherry Fornell had intercourse with other men during the period within which Miranda was conceived. The trial court, in determining that appellee had proved his paternity, did not discuss the burden of proof to be met by appellee. Our research has uncovered no case that discusses the burden of proof which must be applied when a man, after the mother of a child born out of wedlock has died, claims paternity of the child so as to obtain custody.

Although neither case law nor statutory law has addressed the issue before us, both have prescribed the applicable burden of proof in somewhat related situations. To obtain a support order for a child born out of wedlock against the putative father, the claimant need only prove paternity by preponderance of the evidence. 42 Pa.C.S. § 6704(g); Commonwealth ex rel. Johnson v. Peake, 272 Pa.Super. 340, 415 A.2d 1228 (1979). However, in such a support proceeding, the putative father is not pursuing the action to obtain the protected rights and privileges, as well as responsibilities, concomitant with the legal acknowledgment of the parent/child relationship. Rather the mother is attempting to establish paternity to force the man to support the child she claims he fathered. Also, the natural mother, whose testimony is relevant and frequently persuasive in paternity actions, is usually available to testify.

In the case before us, appellee has claimed paternity of the two children in order to obtain the rights and privileges of a parent but only after the natural mother of the children has died. During the mother’s lifetime, appellee took no steps to legally assert paternity of the children and accept the responsibilities of parenthood. Therefore, we hold that the preponderance of the evidence test used in support proceedings is inapplicable here.

The Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 101 et seq. provides that for purposes of descent by, from, or through a child born out of wedlock, the child is considered the child of his father if paternity is established by clear and convincing evidence. 20 Pa.C.S. § 2107. In most instances in which § 2107 applies, one or both of the parents of the child whose lineage is questioned has died and is unable to testify to the paternity of the child; whereas a support action is ordinarily brought while both the natural mother and putative father are alive and each can testify to the paternity of the child. It is this crucial difference in the availability of key witnesses which necessitates the clear and convincing standard of proof applied to determine paternity for purposes of descent. See Estate of Hoffman, 320 Pa.Super. 113, 466 A.2d 1087 (1983) (claims of paternity made after the lips of the alleged father have been sealed by death for purposes of inheritance, are in that class of claims which must be subjected to the closest scrutiny.)

The policy reasons for imposing a higher burden of proof on one claiming paternity after at least one of the parents of the child has died are clear. If the person alleging paternity prevails, he or she will certainly receive a substantial benefit. A natural mother who establishes a decedent to be the father of her child can obtain death benefits and inheritance rights for her child; [77 Pa.S. § 562; 20 Pa.C.S. § 2107(c) ]; a child who has reached his majority can likewise receive distribution from his father’s estate by establishing who his father was; and a father establishing paternity of a child after the mother dies, can obtain an award of custody and the right to decide where and how to raise the child and the right to control any assets of the child on the child’s behalf, or he may seek to obtain inheritance rights through the child should the child predecease him. In all of these situations the consequences of the determination of paternity are considerable. Yet because one of the parents is deceased, the risk of an inaccurate determination of paternity is heightened. Because the consequences of a paternity determination are so far reaching and because such a determination is final and the consequences of determining the relationship are permanent, the court must be reasonably certain that its decision is accurate. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982). Therefore, we hold that when one of the parents of a child born out of wedlock is deceased, and only after the parent’s death is the issue of paternity raised, the one claiming paternity must prove the relationship by clear and convincing evidence.

Because the trial court did not clarify what standard of proof it applied to appellee’s claim of paternity, we must remand to the trial court for proper application of the clear and convincing burden of proof to the evidence which was presented. See: Adoption of T.N.J. and K.M.J., 321 Pa.Super. 355, 468 A.2d 517 (1983) (case remanded when clear and convincing standard of evidence for involuntary termination of parental rights was pending on appeal at time trial court decided case.)

On remand, the issue of the significance of the HLA blood testing which was requested by appellee, ordered by the court, and submitted to by no one will be relevant. The Statute provides that blood tests can be conclusive as to non-paternity, 42 Pa.C.S. § 6136, and case law provides that HLA blood tests are admissible as some evidence of paternity, but are not conclusive. Olson v. Dietz, 347 Pa.Superior Ct. 1, 500 A.2d 125 (1985); Connell v. Connell, 329 Pa. Super. 1, 477 A.2d 872 (1984); Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983).

Appellee requested that the court order HLA blood testing for the parents of Sherry, Franklin A. and Rhoda Milliken, the brother of Sherry, Frank J. Milliken, and the two children whose paternity is in question. In support of the motion requesting the blood testing, appellee attached an affidavit of Dr. Ryals setting forth his credentials in the field of parentage testing and the fact that “testing a deceased mother’s parents and her sibling provides sufficient data to reliably infer the decedent’s phenotypes (blood-types).” Affidavit of Dr. Ryals, ¶ 9. Based on the motion and supporting affidavit, the court ordered HLA blood testing for Franklin A. and Rhoda Milliken, Frank J. Milliken, Jeremiah and Miranda Fornell, and appellee. Franklin A., Rhoda, and Frank J. Milliken refused to submit to blood testing. Therefore, the trial court noted in its opinion that the lack of scientific evidence in the record hampered a conclusive determination of paternity. (Opinion of House, J., November 6, 1984 at 4.)

Although on remand we could direct the trial court to enforce its order for HLA blood testing, and then, applying the appropriate burden of proof, to determine whether appellee is the father, we see no reason to do so for two reasons: 1) the relationship of Franklin A., Rhoda, and Frank J. Milliken to Sherry Fornell renders the blood tests of Rhoda, Franklin A., and Frank J. inconclusive as to the blood types of Sherry; and 2) appellee, despite his request for blood testing, himself failed to submit to blood tests when ordered even though he seeks to establish himself as the father.

Appellee’s motion for blood testing recites that Rhoda and Franklin A. Milliken are Sherry Fornell’s parents and that Frank J. Milliken is her brother. The testimony, however, demonstrates that the paternity of both Sherry Fornell and Frank J. Milliken is uncertain. Both Sherry and Frank J. were born to Rhoda Milliken while Rhoda was married to her first husband, but while Franklin A. Milliken was “boarding” with her. (N.T., August 2, 1984 at 78.) After Rhoda finally obtained a divorce, she and Franklin A. were married and Franklin A. subsequently adopted Sherry and Frank J. (N.T., August 2, 1984 a 78.) Thus, Franklin A. is the adoptive father of Sherry and samples of his blood could provide no clues as to the components of Sherry’s blood. Similarly, Frank J.’s blood could only affirmatively show, if anything, what blood types Sherry acquired from her mother, their only known common ancestor. But this information could be obtained more easily by simply testing only Rhoda’s blood.

The affidavit of Dr. Ryals provides that the HLA blood test can resolve disputed paternity cases when the natural mother is dead “provided first degree kin are available for a family study____ Inferences based on family study are reliable since one-half of the decedent’s genotype is transmitted by each of the decedent’s parents.” Affidavit of Dr. Ryals, ¶ ¶ 8, 10. Dr. Ryal’s affidavit does not say that HLA blood testing can provide any significant evidence of paternity if only the blood of the decedent’s mother is available for testing.

A child receives 50% of his blood types from each parent. Affidavit of Dr. Ryals, ¶ 10; Lake and Paulsen, From Here To Paternity, Family Advocate, vol. 8, No. 1, Summer, 1985, p. 41. Because the only clearly identifiable first degree kin of the whole blood of Sherry is her mother, if the blood test order had been complied with in this case, the court could only determine one-half of the blood types of Sherry. There is only a 50% chance that the known possible blood types of Sherry which she inherited from her mother, Rhoda, were passed on to either Jeremiah or Miranda. If Jeremiah and Miranda each received from Sherry that blood type which Sherry had received from her mother, we could determine which blood types the natural father of the children must have. But if Jeremiah and Miranda each received from Sherry that blood type which Sherry had received from her father, whose identity we do not know, we could not determine which blood types Miranda and Jeremiah must have received from their natural father, but only ones they might have received. We conclude that because blood tests could trace Sherry’s blood through her mother only, and because 50% of Sherry’s blood types came from her father, whose identity has not been determined, the testing of Franklin A.’s and Frank J.’s blood would be purposeless, and the testing of Rhoda’s blood could only incompletely determine Sherry’s blood types.

Appellee could just as accurately have established his paternity of the children by blood testing had he complied with the court ordered testing and had himself and the children tested, than had all the parties been tested as he requested. His own blood test, unlike those of Rhoda, Franklin A. and Frank J. Milliken, was essential to a determination of paternity by blood types. Therefore, if the trial court so desires, it can impose the sanction provided in 42 Pa.C.S. § 6133 and determine the question of paternity against appellee because of his non-compliance with the court order.

In short our analysis of HLA blood testing that was ordered in this case, leads us to the conclusion that not only would the HLA blood testing of Rhoda, Franklin A., and Frank J. have been inconclusive as to the blood types of Sherry, but appellee, who wanted to establish paternity and could have submitted to blood testing, the result of which would have been admissible as at least some evidence of paternity, never did submit himself to the blood testing. In this case, appellee knew of his right to have a blood test and he refused to do so after appellants refused to submit to the tests. However, his blood test, unlike theirs, could have provided him with the positive identification he needed to establish his case.

The Order, as to Jeremiah, is reversed. The order, as to Miranda, is vacated and the case is remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

WIEAND, J., files a concurring opinion.

SPAETH, Former President Judge, did not participate in the final decision of this case.

WIEAND, Judge,

concurring:

Implicit in Judge Rowley’s opinion is a recognition that Jerry Williams, who claims that he is the biological father of Jeremiah James Fornell, has standing to obtain an adjudication of his claim even though the child was conceived and born to a woman while she was married to another who is presumed to be the father. This issue has not previously been before the appellate courts of this Commonwealth and, because of the conflicting interests involved, merits consideration.

The courts of this Commonwealth have held that there is a strong presumption that a child born to a married woman is the child of the mother’s husband. Connell v. Connell, 329 Pa.Super. 1, 6, 477 A.2d 872, 875 (1984). The presumption of legitimacy can be rebutted only by evidence which is clear and convincing. Burston v. Dodson, 257 Pa.Super. 1, 11, 390 A.2d 216, 221 (1978). The issue requiring consideration in this appeal, however, is whether the presumption may under any circumstances be rebutted by one who contends that he is the biological father of a child born to a mother during her marriage to another.

This issue focuses upon the conflicting interests of the contending biological father to obtain an adjudication of his paternity claim and of the state to protect the family and the presumed legitimacy of the child. “The Commonwealth,” it has been said, “has legitimate and strong interests in ‘the strengthening and encouragement of family life for the protection and care of children,’ and in affording legitimacy to children.” P.B.C. v. D.H., 396 Mass. 68, 73, 483 N.E.2d 1094, 1097 (1985) (citation omitted). Nevertheless, in my judgment, it is not necessary to deny a contending biological father access to the courts in order to preserve the interests of the state. The family relationship and the legitimacy of children born to a married woman can adequately be protected by the strong presumption of legitimacy.

Guarantees of due process and equal protection add weight to the need to allow a contending biological father to litigate his private interest in the children whom allegedly he has sired. Anonymous v. Anonymous, 472 So.2d 640 (Ala.Civ.App.1984) (putative father of child born to married woman is entitled to opportunity to present evidence to rebut presumption that mother’s husband was father); In re Lisa R., 13 Cal.3d 636, 532 P.2d 123, 119 Cal.Rptr. 475, cert. denied, 421 U.S. 1014, 95 S.Ct. 2421, 44 L.Ed.2d 682 (1975) (unwed father has standing to challenge statutory presumption that child of married woman is legitimate issue of marriage where both mother and presumed father are dead and state has custody of child); R. McG. v. J. W., 200 Colo. 345, 615 P.2d 666 (1980) (statute which deprives putative father of access to courts to assert claim of paternity violates principles of equal protection); Pritz v. Chesnul, 106 Ill.App.3d 969, 62 Ill.Dec. 605, 436 N.E.2d 631 (1982) (putative father of illegitimate child has constitutional right to legal forum with due process to establish natural parentage and paternal rights). Cf. Smith v. Lane, 101 Misc.2d 615, 421 N.Y.S.2d 786 (1979) (putative father allowed to sue to establish paternity — no discussion of standing); Rayson v. Gabby, 57 A.D.2d 437, 395 N.Y.S.2d 290 (1977) (same). See also: Lehr v. Robertson, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614 (1983); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Contra: P.B.C. v. D.H., supra; Petitioner F. v. Respondent R., 430 A.2d 1075 (Del. 1981); A v. X, Y, and Z, 641 P.2d 1222 (Wyo.1982).

Although appellee had standing to assert and obtain an adjudication of his claim of paternity, I agree with Judge Rowley that the evidence of appellee’s paternity was inadequate as a matter of law to overcome the presumption that Jeremiah was the legitimate son of his mother and his mother’s husband. Therefore, I agree that the trial court’s award of Jeremiah’s custody to appellee should be reversed.

I also agree with Judge Rowley that a remand is necessary to permit the trial court to apply a “clear and convincing” standard regarding appellee’s evidence that he is the biological father of Miranda.

      . The issue of the constitutionality of finding paternity in support actions by only a preponderance of the evidence is presently before the Pennsylvania Supreme Court. Minnich v. Rivera, No. 161 E.D.Appeal Docket 1984.

      . His blood test not only would be essential for any conclusion to be drawn from the blood tests, but possibly only his and not the mother’s or her relations’ tests would be even necessary to make a valid conclusion about paternity. In La Croix v. Deyo, 113 Misc.2d 89, 447 N.Y.S.2d 864 (Fam.Ct.1981), a putative father brought an action to establish his paternity of a child born out of wedlock. Although the child’s natural mother was dead, as in the case at bar, an HLA blood test was made on only the child and the putative father. The court held that the results of these tests were admissible, noting that the expert testifying about the blood test had stated that the mother’s death neither precluded the making of the HLA test nor impaired the validity of the conclusions drawn therefrom.