Consumer Choice and Society

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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Those who like to celebrate the contemporary capitalist economy frequently do so in terms of choice. Some are quite open that it is consumer choice that excites them, the ability to pick and choose among an immense variety of products, according to one’s whims and desires. Others, more conscious of the shallowness implicit in reducing man to simply a consumer of goods, are wont to point out that even though our society itself may be preoccupied with material possessions, we ourselves as individuals are free to occupy ourselves with better things, with cultural or spiritual goods, for example.  While of course this is true, one might wonder why so few people seem to manifest much interest in these latter types of goods. But perhaps the real problem here is the attempt to reduce human choice solely to the individual level. It is true, of course, that individuals do have the freedom to choose. Our wills were created by God to desire goods, but we have the freedom to choose among goods, to choose appropriately or not, to make choices that do not interfere with the attainment of our eternal salvation, or that make this more difficult or even impossible to attain. This does not mean, of course, that we must always choose the highest goods; rather, as the collect for the Third Sunday after Pentecost in the traditional Roman rite puts it, in such a balanced way, that “we may make use of [transeamus] temporal goods so as not to loose eternal goods.”

But there is much more to say here than simply to exhort one another to make good choices. For we exist not merely as individual choice-making consumers – even when our choices might be of the most laudable kind – but as members of society, and as such, invariably influenced by that greater social whole. In his 1991 encyclical Centesimus Annus, St. John Paul II offered a penetrating discussion of the connection between individual choice and the society or culture around us. He wrote (in section 36)

The manner in which new needs arise and are defined is always marked by a more or less appropriate concept of the human person and of the person’s true good. A given culture reveals its overall understanding of life through the choices it makes in production and consumption. It is here that the phenomenon of consumerism arises. In singling out new needs and new means to meet them, one must be guided by a comprehensive picture of the person which respects all the dimensions of his being and which subordinates his material and instinctive dimensions to his interior and spiritual ones. If, on the contrary, a direct appeal is made to human instincts…then consumer attitudes and lifestyles can be created which are objectively improper and often damaging to the person’s physical and spiritual health. Of itself, an economic system does not possess criteria for correctly distinguishing new and higher forms of satisfying human needs from artificial new needs which hinder the formation of a mature personality. Thus a great deal of educational and cultural work is urgently needed, including the education of consumers in the responsible use of their power of choice, the formation of a strong sense of responsibility among producers and among people in the mass media in particular, as well as the necessary intervention by public authorities.

Here John Paul makes clear the connection between individual choice and the concept or picture of human good which a culture projects. Consumerism is not simply bad choices made by consuming individuals, for these bad choices do not occur in a vacuum. They presuppose the fundamental things that a society values, what it produces and what it teaches about human needs and goods. John Paul notes four matters that require attention, “the education of consumers in the responsible use of their power of choice, the formation of a strong sense of responsibility among producers and among people in the mass media in particular, as well as the necessary intervention by public authorities.” For now, let us focus on just one of these, “the formation of a strong sense of responsibility…among people in the mass media.”

Here advertising immediately comes to mind, and it is surely one of the most potent methods of teaching that any society makes use of. Advertising rarely teaches by precept, but more subtly creates illusions as to what is a good or satisfying or exciting life, and what products are necessary to share in such a life. It is not simply the promotion of a particular product, rather it is generally the promotion of “artificial new needs which hinder the formation of a mature personality,” for the sake of convincing the public to buy new products or new kinds of products.

It is true that the ability of advertising to influence consumer choice is not unlimited. There have been notable instances of marketing failures because of consumer resistance. But I do not think that anyone looking honestly at our economy today could fail to see that for the most part it is characterized by “artificial new needs which hinder the formation of a mature personality,” which convince people that happiness is to be found in the possession of more gadgets or of some particular gadget.

However, it is not simply by advertising that the mass media influence culture and public opinion. The media as a whole present an image of “consumer attitudes and lifestyles” that, more often than not, “are objectively improper and often damaging to the person’s physical and spiritual health.” They do this by the contents of their shows, certainly, but equally as much by the very images they offer, of apparently successful and happy people, and even by the news items they focus on and the way they analyze news events.

In response to this John Paul rightly highlights the need for “educational and cultural work,” the formation of a strong public recognition of man’s true good and, on the other hand, awareness of those false goods which directly appeal to human instincts and fail to subordinate our “material and instinctive dimensions to [our] interior and spiritual ones.” In this connection both the Church and educational institutions at all levels can play an important part. But he also notes “the formation of a strong sense of responsibility among producers…, as well as the necessary intervention by public authorities.” Here we can ask if the very structure of economic life can contribute to the correct formation or to the deformation of our understanding of the human person. In considering this, if we recall the definition of capitalism offered by Pope Pius XI in his 1931 encyclical Quadragesimo Anno, as “that economic system in which were provided by different people the capital and labor jointly needed for production” (sect. 100), we might begin to see why a society’s ordering of its economy has profound implications for its cultural, intellectual and spiritual health.

Under capitalism, when separation of ownership and work is the norm, there exists a class of persons, the owners of capital, for whom the economy is not so much a way of supplying mankind with truly necessary and useful products, with real means of satisfying genuine human needs, as it is of making and selling anything that people can be persuaded to buy, of working to create “artificial new needs” in order to promote sales of their products. Hilaire Belloc explained this in a striking passage.

But wealth obtained indirectly as profit out of other men’s work, or by process of exchange, becomes a thing abstracted from the process of production. As the interest of a man in things diminishes, his interest in abstract wealth – money – increases. The man who makes a table or grows a crop makes the success of the crop or the table a test of excellence. The intermediary who buys and sells the crop or the table is not concerned with the goodness of table or crop, but with the profit he makes between their purchase and sale. In a productive society the superiority of the things produced is the measure of success: in a Commercial society the amount of wealth accumulated by the dealer is the measure of success. [1]

The small producer is intimately connected with his product, and generally has some interest or pride in workmanship beyond simply how much money he can make. But necessarily those who are one or more steps removed from the productive process will tend to look at their product as simply something to be sold, and sold not necessarily because it is necessary or useful, but because advertising can persuade people to buy it. Under capitalism, “the formation of a strong sense of responsibility among producers” will be unusual, because the cultural climate will focus on “the amount of wealth accumulated,” not on the inherent quality of the product or service.

St. John Paul notes also “the necessary intervention by public authorities.” In many people’s minds, this raises the specter of a Soviet-style command economy. But this is a groundless fear. Any type of economy requires a legal system to support it. Capitalism, as much as any other, both shapes the legal environment and depends upon it for structure and support. For example, were it not for the unprecedented powers and rights given to corporations by courts and legislatures since the second half of the 19th century, advanced capitalism could hardly exist. None of this was inevitable, however, but rather the result of corporate influence over government and the general cultural attitudes endemic to a commercial or consumer society.

But a legal system could also work in favor of a distributist economy, an economy characterized, as much as is feasible, by a joining of ownership and work, private ownership for the most part, but private ownership of such a kind that producers are generally interested in more than how much money they can make. “The man who makes a table or grows a crop makes the success of the crop or the table a test of excellence.” Of course he needs and expects to make a sufficient return on his work to support himself and his family, but the ever-present connection with real work and real products tends in the opposite direction from the capitalist separation of ownership and work. Moreover, we should note that ownership in a distributist economy need not be individual proprietorships, but can be employee cooperatives. Such cooperatives will generally be necessary for production which requires large-scale machinery or large capital investment.

Of course, due to our First Parents fall into sin, distributist owners will also be affected by greed, by a temptation to cut corners, and so on. This is part of the human condition. But there is a huge difference between a system which facilitates greed, which promotes a desire to cut corners and defraud customers, and a system that does not encourage such evils. Capitalism promotes sin, distributism does not.

Right now the power of capitalists, particularly as embodied in corporations, is overwhelming. For the most part, distributism must manifest itself in nooks and crannies of the economy. We should seek these out and help them to grow. But there is another thing we can do: we can refuse to allow the culture of capitalism of colonize our minds. We can reject “new needs and new means to meet them” which are not “guided by a comprehensive picture of the person which respects all the dimensions of his being and which subordinates his material and instinctive dimensions to his interior and spiritual ones.” We can distinguish in our own thought and life “new and higher forms of satisfying human needs from artificial new needs which hinder the formation of a mature personality.” We can thus carry out, in our own minds, in our own families and among our own friends and acquaintances, some of the necessary “educational and cultural work” that John Paul calls for. In short, we can take small steps to break down the oppressive ideology of consumerism which surrounds us and live in the freedom of that truth which can set us free.

Printable version

Notes:
[1] An Essay on the Nature of Contemporary England (New York: Sheed & Ward, 1937) p. 67.

Practical Distributisim: The Cost of Comparative Advantage

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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The advocates of Free Trade deals between countries frequently cite the fact that more products are made available at a lower cost to consumers as proof that their idea makes economic sense. Their explanation of how this works rests on the idea of Comparative Advantage,[1] the idea that one country can produce a good at a lower opportunity cost than other countries. Based on this idea, if the industries in one country focus on those products where they have the lowest opportunity cost, and import products where they don’t, this provides an abundance of lower priced goods for everyone. For the advocates of Free Trade, price [2] appears to be the ultimate test of what is economically good. They scoff at opponents and critics of Free Trade as if their criticisms of it are completely without merit. Even some economists who have dared to question Free Trade, still try to uphold Comparative Advantage as a reasonable idea.[3] The reality is that the Free Trade ideology ultimately rests on Comparative Advantage. Therefore, it is prudent to examine the criticisms of it to see if they do, in fact, merit consideration. I believe that history has proven that they do.

The United States of America used to have a much more robust manufacturing industry. Critics will immediately respond that there is actually a growing manufacturing base in the U.S.,[4] but let me explain what I mean. It is true that certain types of manufacturing are growing in the U.S. However, these are not the same types of manufacturing jobs as in the past. Historically, U.S. manufacturing employed all levels of workers. High skilled and high educated workers developed and designed products, but our manufacturing industries also employed the low to average educated who worked on the assembly lines and did those aspects of manufacturing work that did not require higher levels of education. Over the last thirty to forty years, we have increased the jobs requiring high levels of education and outsourced jobs for those with an average education.

“The mantra that we’ve lost good-paying jobs to China is exactly wrong,” said Michael Hicks, an economics professor at Ball State University who has studied manufacturing in Indiana. “We’ve lost the bad-paying jobs to China and gained good-paying jobs.”[5]

These “bad paying” jobs supported large numbers of middle class families across the country. The “good paying” jobs were precisely ones that those displaced by this shift were unqualified to get. Essentially, the U.S. manufacturing industry has said that, unless you can get a degree in science or engineering, don’t bother applying to them for a job. The callous disregard of this large, middle class group of workers has caused economic and political tremors in the U.S. in recent years. Why were these hard working people turned out by their employers? The reason is Comparative Advantage. Our largest manufacturing employers are focusing only on those areas with the “lowest opportunity cost” to them. This is done without regard to what happens to their fellow citizens, and then they wonder why U.S. citizens don’t have much loyalty to domestic products.

Industrial heavy hitters who were able to develop and grow during an age of protectionist tariffs, now demand Free Trade on the basis of Comparative Advantage. Tariffs used to provide jobs in the U.S. as foreign manufacturers would open factories in the U.S. to avoid paying them.[6] As the threat of tariffs disappeared, so did the jobs.

… “industries where the threat of tariff hikes declines the most experience greater employment loss due to suppressed job creation, exaggerated job destruction and a substitution away from low-skill workers.”[7]

However, this issue goes beyond assembly line jobs. Comparative Advantage, and its necessary Free Trade deals have spread across all aspects of production in every country that has adopted this economic ideology. What happens, though, when the foreign supply lines are threatened? We have already written about how natural and economic disasters in other countries have impacted the availability of products of supposedly “American” manufacturers. The truth is that this is not as rare an occurrence as some may believe. It is easy to forget, though, when these amount to not much more than an inconvenience or an annoyance to us. For example, past flooding in China has resulted in shortages of computer parts for U.S. computer manufacturers. Because these types of events ended up being a temporary annoyance where people had to wait extra time for these parts, few seemed to really consider the greater implications of such a dependence. The fact that our supply chains have not significantly changed in the decades since those incidents shows that those who had enough foresight to raise an alarm were not taken seriously.

The reality is that the same warnings given about too much dependence on foreign manufacturer of critical technology apply to other critical areas. The same warnings have been raised about this type of dependence for things like medicines.[8] It does seem that a lot of these articles focus specifically on the dependence of Western countries on China. There are two reasons for this.

The first and most obvious reason is that China has become the biggest manufacturer of critical computer technology and medical supplies in the world. European and North American companies have outsourced the manufacture of these critical needs to China; a process that has been enabled by the cooperation of their governments. This is despite the fact that China is widely recognized by these governments as consistently violating basic human rights and having sub-standard working conditions that would not be accepted in their own countries, and these supposedly capitalist companies are moving their production to a socialist country. Some advocates of Free Trade say that China has moved to a more “corporatist” form of business model that is (by implication?) more compatible with capitalism. The reality is that corporatism is a socialist economic model that was adopted by the Fascist and Nazi regimes as part of their socialist economic plans.

However, the warnings against this type of dependence was ignored and, with the unfortunate outbreak of the COVID-19 virus, we are once again having to deal with the reality of this issue. The realities in this case are the same. There are both annoyances as our supplies of non-critical products are delayed.[9] There are also more serious consequences as this circumstance has raised the possibility of critical drugs and medical supplies might also be at risk.[10]

However, let’s consider another serious implication of what Comparative Advantage has done to us. It appears that even some of the manufacturing requiring high skilled and highly educated workers have also been outsourced. We seem to forget just how much of our society has become dependent on computer technology. This goes beyond our government offices, our communications networks, and the systems that run our economic industry. The advanced weapons systems used by the defense forces of Western countries are also completely dependent on this technology.

Even though our economic powerhouses have viewed China as an “economic partner” for several decades, I find it hard to believe that the military and intelligence departments of Western countries look at China as much of a partner. However, those departments rely on computer technology made by the companies that do. As a result, our most advanced weapons and defense systems, as well as our communications networks,[11] are all dependent on advanced computer parts made by a potential adversary.  Is this a real threat?

In 2011, it was reported that the “Government Accountability Office found that counterfeit routers with high failure rates had been sold to the Navy, and that counterfeit microprocessors had been purchased by the U.S. Air Force for use on F-15 flight control computers.”[12] A “scientist at Cambridge University in the United Kingdom claims to have developed a software program proving that China — and anyone else — can, and is, installing cyber backdoors on some of the world’s most secure, ‘military grade’ microchips.”[13]

You might think that this is a lot to blame on an idea like Comparative Advantage, but then you have to answer the question of why we no longer make these computer components for ourselves. The U.S. used computers designed and built in the U.S. to put men on the moon. This was not that long ago. Today our most advanced communications and defense systems are dependent on technology we might design, but no longer make. The same is true for medicines and medical supplies. We use computer components without even thinking about it, in our phones, in our cars, and in our home entertainment systems, and these components are all made by a foreign power that is philosophically opposed to the ideas that founded our societies. How did we get to such a place? We got there because our largest industries, and their partners in government, are believers in the theory of Comparative Advantage and have worked together to implement Free Trade agreements to make that theory a reality.

Printable version

Notes:
[1] https://www.economicshelp.org/blog/glossary/comparative-advantage/

[2] https://practicaldistributism.blogspot.com/2015/08/price.html

[3]  https://economistsview.typepad.com/timduy/2010/07/why-is-the-american-jobs-machine-broken.html

[4] https://www.theatlantic.com/business/archive/2017/01/america-is-still-making-things/512282/

[5] Ibid.

[6] https://www.cnbc.com/2015/02/05/the-rise-of-made-by-china-in-america.html

[7] Pierce, Justin R. and Schott, Peter K. “The Surprisingly Swift Decline of U.S. Manufacturing Employment”. National Bureau of Economic Research, American Economic Review, Vol 106(7), Dec. 2012, Revised Jan. 2014
https://www.nber.org/papers/w18655.pdf

[8] https://www.americanthinker.com/articles/2019/01/exposing_the_risks_of_americas_dependence_on_china_for_medicine.html

[9] https://financemarkethouse.com/2020/02/18/apple-admits-the-coronavirus-will-cause-a-global-iphone-shortage/

https://abcnews.go.com/Business/coronavirus-outbreak-puts-chill-us-businesses-apple-starbucks/story?id=68639376

https://www.just-auto.com/hot-issues/coronavirus-hits-the-auto-industry_id636.aspx

[10] https://www.wired.com/story/the-coronavirus-is-a-threat-to-the-global-drug-supply/

https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/coronavirus-pandemic-threatens-to-cut-pharmaceutical-industrys-lifeline/articleshow/73753415.cms

[11] https://www.cnet.com/news/chinese-spy-chip-reportedly-found-in-server-at-major-us-telecom/

https://www.theguardian.com/technology/2018/oct/04/china-planted-chips-on-apple-and-amazon-servers-report-claims

https://www.bloomberg.com/news/features/2018-10-04/the-big-hack-how-china-used-a-tiny-chip-to-infiltrate-america-s-top-companies

[12] http://www.allgov.com/news/us-and-the-world/counterfeit-computer-chips-from-china-compromised-us-military-equipment?news=843552

[13] https://www.military.com/defensetech/2012/05/30/smoking-gun-proof-that-military-chips-from-china-are-infected

https://www.youtube.com/watch?v=wk5oLLdTkq0

Title photograph by Thorsten Lindner.

Published under the Creative Commons Attribution-Share Alike 4.0 International licens.

Posted by David W. Cooney  

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Labels: Business, Economics, Industry

Valentine’s Day is NOT Pagan

As seems to be common, there are a lot of misconceptions over the origin of the traditions that surround Christian holidays.

As shown here and here respectively, the traditions of Christmas and Easter are not derived from paganism, despite the apparent general popular beliefs to the contrary.

The same goes for St. Valentine’s Day as well.  To that end, here is a great video on this subject.  Check it out!

PA Superior Court Says QDRO’s Take Effect Upon Execution of Marital Agreement

Conway v. Conway v. City of Erie Police Relief and Pension Association, 209 A.3d 367 (PA Super. 2019)

Brief Summary of the Facts:

Michael Conway (“Husband”) and Julie Conway (“Wife”) were married on July 12, 1991 and separated in August 2007.  Husband was employed as a police officer and filed for divorce on July 28, 2009. The parties executed a Marital Settlement Agreement (“MSA”) on Aug. 19, 2016, that directed the parties to prepare, execute, and file a Qualified Domestic Relations Order (“QDRO”) to allow Wife to receive her marital share of Husband’s pension. At the time of the execution of the MSA, Husband’s pension plan stated, with regard to a QDRO, “a former spouse of a Participant shall be treated as the spouse or surviving spouse for all purposes under the Plan.” A divorce decree was entered on Aug. 22, 2016, that incorporated the MSA. On Aug. 23, 2016, the municipality for which Husband worked amended the pension plan to read “a former spouse of a Participant shall not be treated as the spouse or surviving spouse for any purposes under the Plan,” (emphasis added). Wife submitted the QDRO to the pension plan administrator on Aug. 29, 2016, which denied the QDRO on the basis that as it was filed after the Aug. 23, 2016 pension plan revision and is inconsistent with the same. Wife filed a Motion for Entry of QDRO, which was denied by the trial court, prompting Wife to appeal to Superior Court.

Issue:

Did the trial court err by failing to enter the QDRO submitted by Wife to secure her post-divorce rights to Husband’s pension when the MSA and Divorce Decree were both filed/entered and in effect prior to the revision to the pension plan? Holding A QDRO is an order “which creates or recognizes the rights of an alternate payee to receive all or a portion of the benefits payable to a participant under [a pension] plan.” A QDRO merely implements the terms of a preexisting MSA and does not in itself create new rights or terms. In the instant matter, the MSA was entered and incorporated into a Divorce Decree before the pension plan was revised; therefore, as the QDRO only serves to recognize and implement settled rights, it is enforceable as the underlying MSA predates the pension plan revisions. The denial of the QDRO amounts to an unlawful ex post facto application of the revised pension plan. Based on the above, the court directed the QDRO to be entered.

Comments/Impressions:

The court also pointed out that the objective of the Divorce Code “is to effectuate economic justice” for the parties to a divorce. In the court’s estimation, to rule against Wife “would deny [her] the benefit she bargained for and would cause an unfair and severe injustice concerning the parties’ settlement of their existing rights” and would be “contrary to the goal of achieving economic justice.”

Originally published in the Pennsylvania Family Lawyer in Volume 41, Issue number 3 (Autumn 2019)

Finding Attorneys in Contempt for Clients’ Actions in Divorce Case

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do.

No one wants to be held in contempt of court, and attorneys do their best to try and keep their clients from being held in contempt, but there are times when an attorney can be held in contempt of court for what his client does or does not do. The recent Pennsylvania Superior Court case of Farrell v. Farrell, No. 1424 WDA 2018 (Pa. Super), should serve as a cautionary tale for all attorneys to keep in mind when discerning how much involvement their clients should have in the drafting and serving of legal documents.

Farrell is a divorce matter that involved two represented parties, the husband and the wife. The husband initiated the divorce action against his wife who, for the first two years of the case, elected to proceed on a pro se basis. When it was time for the case to be advanced to a divorce master, the wife hired an attorney. In the months leading up to the divorce master’s hearing, the husband issued the wife informal discovery requests. The wife ignored the requests, which led to the husband issuing follow-up correspondence, to which, again, the wife provided no response. As a result, the husband filed a motion to compel the responses to the discovery requests. The trial court granted the motion, and gave the wife 20 days to comply with the discovery requests.

Instead of taking an active role in helping her client respond to the discovery requests, the wife’s attorney simply allowed her client to type up the responses herself, which the attorney then forwarded to the husband’s attorney, unedited. In her responses, the wife refused to disclose some information, declared some requests “N/A,” and leveled personal attacks upon the husband in others.

The wife’s pro se responses provoked the husband’s attorney to file a motion to compel, for sanctions and for attorney fees. The court scheduled a hearing on the husband’s motion three days after the responses were filed, as the master’s hearing was scheduled for four days after the responses were filed. As a response to the husband’s aforesaid motion, the wife’s attorney immediately filed her own motion to compel and for attorney fees.

At the motion hearing, the husband admitted that more documents were produced by the wife, but her responses were still inadequate. Furthermore, the wife’s attorney indicated that she had not prepared the discovery responses for the husband, but simply allowed her client to type up the responses where provided on her own. The court took note of when the wife filed her above-mentioned motion and found that it was filed for the sole purpose of trying to “equalize” the motion filed by the husband, and not for any actual legally cognizable purpose.

At the conclusion of the hearing, the trial court dismissed the wife’s motion and granted the husband’s motion, ordering that the wife may not produce any documentation not already produced in support of her own case. The court also found the wife’s attorney to be in contempt, ordering her to pay the husband’s attorney fees. The wife’s attorney filed for reconsideration and appealed this ruling to the Superior Court.

The wife’s attorney argued in both her motion for reconsideration and the appeal that she cannot be personally found in contempt as she was never actually ordered to do anything (only her client was) regarding discovery. To this end, she maintained that no evidence was ever produced demonstrating that she, personally, had any court order directing her to do anything, therefore there is no evidence that she disregarded a court’s order. She further argued that there was no evidence belonging to the wife that she had in her possession that was requested to be produced; therefore, she did not personally withhold anything from being produced in discovery.

As an initial matter, the Superior Court first noted that the wife’s attorney cited to no authority for the proposition that she cannot personally be held in contempt for her client’s actions or inactions. As a result, under established case law, her arguments, on that issue, were deemed waived as unsupported by authority.

Regardless, the court cited to Pa.R.C.P. 4019(g)(1) which states that “the court on a subsequent motion for sanctions may, if the motion is granted, require the … attorney advising such conduct … to pay the moving party the reasonable expenses, including attorney’s fees …”

Based on Pa.R.C.P. 4019(g)(1), the court determined that the wife’s attorney’s decisions to allow the wife to personally produce deficient and attacking discovery responses without the attorney offering any input or edits, did not comply with the trial court’s order to compel, and her filing of what appears to be a retaliatory motion to compel are all adequate grounds to hold the wife’s attorney in contempt of court.

So, while it is rare, practitioners should always be cognizant of the fact that they could be held in contempt of court for the actions of their clients, even if they were not personally directed by the attorney and there is no order directing the attorney to do anything.

James W. Cushing is a senior associate at the Law Office of Faye Riva Cohen and is a research attorney for Legal Research Inc.

Originally published in The Legal Intelligencer on December 16, 2019 and can be found here.

Family Law’s Alphabet Soup: To Spell It Out or Stick With Initials

Over the last several years it has been increasingly common for the captions of child custody cases when taken on appeal to be referred to by the initials of the parties, as opposed to using their full names.

Over the last several years it has been increasingly common for the captions of child custody cases when taken on appeal to be referred to by the initials of the parties, as opposed to using their full names. Contrary to what many assume, the trend to initialize is not due to some established procedural rule or directive from the Pennsylvania Supreme Court, but, rather, it is due to a provision in the Pennsylvania Superior Court’s internal operating procedures.

Although initialization has been the practice of the Superior Court for around 10 years at this point, many attorneys, especially those who are more senior in the practice, have not been supportive of initialization, as it makes it difficult to remember the names of the cases, and makes any discussion of case law rather difficult. Indeed, the term “alphabet soup” has been applied to this practice. Furthermore, some trial courts have adopted the practice of initializing independently, which has made referring to a custody order with a third party rather difficult. So, for example, when a party or child’s name is initialized in a custody court order, a third party (e.g., a school or a doctor) may not comply with its terms as it has no objective way of knowing whether the initials in the order actually refer to the party or child seeking its application at that doctor’s office or school.

In order to create a uniform practice and consistent direction about when and why to initialize, two revisions to the Pennsylvania Rules of Civil Procedure, R.C.P. 1915.10 and 1930.1 are currently bring proposed.

The revision to Rule 1915.10 definitively authorizes trial courts to initialize custody cases if the facts of the case are considered sufficiently “sensitive” in order to protect the privacy and reputation of the parties and children involved. As an additional layer of privacy protection, any initialized court order or opinion must also take steps to obscure the names of schools or activities and other specific references to things that could be used identify the child(ren) and parties in the case; instead, general terms should be used when possible. For example, instead of identifying a child’s soccer league, an order should simply state something like “soccer league,” and instead of using a child’s school’s name, it should merely refer to a “school.”

In addition to the above, the suggested revisions to Rule 1930.1 require the full names of the parties involved to be used in captions unless the case involves “sensitive facts” and with consideration of the child’s best interests or violates the above revisions to R.C.P. 1915.10 protecting the privacy of sensitive cases. It is in the estimation of the drafters of the revisions that the typical custody case does not involve such sensitive information, or shocking and outrageous facts, that would require taking the additional measure of initialization to protect the privacy of the children or parties involved.

So, family attorneys, particularly those who focus on custody law, need to monitor these developments to ensure they remain compliant with the rules and sufficiently respect the privacy of the parties and children involved in their custody cases.

Published on October 1, 2019 in The Legal Intelligencer and can be found here and reprinted in The Pennsylvania Family Lawyer in Volume 41, Issue No. 4 which you can see here.

The Homeless

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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The issue of the homeless in society is starting to get more attention in the news in the United States. Unfortunately, I suspect that this is only because of the upcoming presidential election. It would be unfair to say that this issue gets no attention at other times, but it does seem to me that the level of attention has increased as a topic of interest for our federal elections. While any public attention to this issue is welcome – it is a real issue that needs to be addressed – it does seem that the form of attention and the ways of addressing it leave a lot to be desired. I think this is true from both a general perspective as well as a specifically distributist one.

Homelessness appears to be on the rise in the United States. While there always has been, and undoubtedly always will be (Mark 14:7) homeless among us, the number of people living on the streets does appear to have increased a great deal in recent years. It is possible that, with some cities declaring themselves to be “sanctuaries” for the homeless, some of them have managed to migrate to those urban centers. To the extent that this is true, it could be said that the number of homeless has not increased as much as the concentration in urban centers has. Why is this issue relevant to distributism? Because this social issue touches both on the economic and the political life of communities throughout the country and around the world.

From a distributist perspective, homelessness, like most things, should be handled on as local a basis as practically possible. Our current political and tax structure may limit this, but that can and should change. Religious and other private organizations should be the front line in providing hands-on assistance as much as possible. Locally run government assistance programs should be established for what these other organizations are not able to handle. From the distributist perspective, the fact that an issue is wide-spread does not mean that higher levels of government become the primary actors in addressing it. Therefore, distributism doesn’t prohibit higher levels of government from offering assistance to the local providers of helping those in need, but they must not be allowed to usurp the role of the local organizations and government in directly addressing the issue. Therefore, even though homelessness is an issue throughout our society, and addressing it may require assistance from state or federal government, this assistance does not include setting policy for, or direct management of, assistance to those in need when more local organizations can do this.

We cannot ignore the concerns of those in the community who are not homeless. Many of them would willingly help the homeless, but also need to have their own concerns related to this issue addressed. These people would have the most motivation to help the homeless for both altruistic and personal reasons. Altruistic because they can see those in need and want to assist them. Personal because they are being negatively impacted when the homeless block sidewalks and doorways, and defecate and urinate in public parks, on the sidewalks, and in the doorways. Customers are driven away, businesses suffer or close, which means that these people have less money available to help those in need. Eventually, they will move away, taking their businesses with them, which means that there are fewer people to support the programs to help the homeless.

Another aspect where our society seems to be failing to address the issue of homelessness is that those (in government) who have taken charge of addressing it don’t seem interested in identifying the various aspects to the problem. A “one size fits all” simple solution will not successfully address the issue because there are different reasons that people are homeless. You can’t simply say, “we’ll provide housing” to solve the problem if the problem goes beyond the simple availability of housing – and it does. While this is certainly a simplification, I believe we can identify at least four broad categories of homelessness which will clearly show that one solution will not be able to succeed in addressing the problem.

The first category, and maybe the largest, are those who are addicted to drugs. Some people will argue that these people are voluntarily homeless because they voluntarily started taking drugs, however we know that the drugs being used by the homeless alter mental processes and are so strongly addicting that they truly need outside assistance to break the drug use cycle. Therefore, I cannot agree that these people can truly be categorized as voluntarily homeless. Being under the influence of mind-altering drugs while out in public presents a public danger. Therefore the local government has an obligation to protect its society from those who fit in this category. There are programs out there which have been successful in assisting those in this situation to get off these drugs, and we should promote those programs implemented according to distributist principles as much as possible.

The second category are those who have some kind of mental illness or condition. Some might try to group these people with those addicted to drugs, but I disagree (although there may be some overlap of the two). Where those who are addicted to drugs are in their condition because they take drugs they should not, some of those who are mentally ill are homeless because they don’t take the drugs they should. Some don’t take the drugs they need because their addiction still controls them, and others because they could not afford to get the drugs they needed. Additionally, there are those with mental illnesses for which there is no effective treatment.

In both of the cases above, leaving these people out on the street without “harassing” them is not an act of compassion, and it certainly doesn’t help them or the community negatively impacted by them. If we are committed to helping them, we must provide and support the institutions and programs which takes them from the street and into programs to help them and keep them off the street. These people are not only in need, but are suffering in a way that goes beyond their ability to help themselves.

The third category of homeless are those who are “down on their luck.” They are the ones whose jobs have been eliminated or outsourced to other areas. They do not have the means to get the training they need to change careers or to move to where the jobs are. Programs to assist these people to get training, to live while they get it, to help them get jobs, and to get to where the jobs are, need to exist. I am including in this category those who desire to work to support themselves and their families.

I believe there is broad support for helping those who fall into these three categories, even if that support is for different reasons. These are people who are in true need of help. I believe both a personal and a social responsibility exists to help them (Matt 25:34-46), and by doing so to help the overall community.  This would serve the common good, that is the good of the individual and also the good of the community as a whole.

The fourth category of homeless, which I believe is a small minority of the homeless, are those who are truly voluntarily homeless. Those who have chosen this as their own way of life separate from the community, but also simultaneously within it. I do believe we need to remain open to a certain degree with these people and not disrupt them unnecessarily. However, if they are living within a community, and taking advantage of the public goods of the community without actually being a part of the community or contributing to it, they are effectively stealing resources from those in need and from the community they refuse to join. If they are capable of supporting themselves but choose not to, then the social obligation to them is less than it is to the other categories. They should still be treated with human decency, but that doesn’t mean we have to support them in their chosen life style or blithely accept them disrupting the community, especially when doing so would use resources intended to help those in real need. We must treat them with justice, but justice is equally owed to the society at large.

I have listed four broad categories, and I believe that each of them could be divided into sub-categories. It is an unfortunate reality of our time that neither of the major political parties, and the various economic philosophies, seem to be willing to truly address homelessness in the various ways it needs to be addressed. I believe that part of the reason for this is that they all approach it from either a highly centralized or extremely individualistic perspective. Both of these perspectives tend toward over-generalization in order to win the broadest level of support. The distributist movement looks at this situation from the local perspective. If the homeless in a particular community are those down on their luck, they can focus their efforts of assistance to address that problem. Another community where the majority of homeless are addicted to drugs can focus on that.

This is why distributists accept the idea of subsidiarity. The local community knows its problems better than more centralized and distant governments. They are in the best position to address the problems, even if they need assistance to accomplish what needs to be done.

References:

Seattle is Dying

 

What They All Get Wrong About Tariffs

This article is part of my posts on the economic system of distributism.  This is from practicaldistributism.blogspot.com which you can find here:

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When President Trump chose to impose tariffs on China, there were various reactions. Some economic schools praised him because they believe tariffs will improve the American job market in those industries currently heavily outsourced to Chinese labor. Free market libertarians, typically representing the Austrian school of economics, berated him because they believe tariffs are terrible and hurt the American economy. However, Trump said he was doing this as an economic sanction because China was stealing US intellectual property.

Let’s start with where President Trump is wrong. He is using the tariff as a means of economic sanction – to punish another country. This is generally being characterized as a form of “trade war,” which is not an unreasonable conclusion. The reason he is wrong, however, is because we have been living under the doctrine of free trade long enough that China can economically hurt us just as much as we can economically hurt them. You can only impose a punishment from a position of power, and we don’t seem to have one. China is where our corporations produce our computers, cell phones, network infrastructure components, and many other things on which we have come to depend for our daily lives. It wasn’t that long ago that flooding in a region of China cause a world-wide shortage of computer disk drives. China can retaliate quickly and effectively against any form of economic sanction we may want to impose. A concrete example of this type of economic, and therefore political, dependence is the United Kingdom’s departure from the European Union. One of the issues they have to address is potential interruptions in their food distribution. The UK has the resources to provide this for itself, but they have spent decades allowing themselves to become dependent on foreign countries for basic necessities. This is now being used as an argument against becoming politically independent from the EU.

Those praising the tariffs as a means to improve American job opportunities are wrong because Trump’s stated reason for imposing the tariff is not to bolster American jobs or American industries. It was a punishment for stealing intellectual property from American companies. Our situation is very different than when our economic might was building during the industrial revolution. As a nation, we desired greater economic power, but we were already economically independent for the majority of our daily needs and wants. We used an aggressive tariff system to not only protect our fledgling industries, but to open foreign markets to our strong industries.

Others, including those who believe in the Austrian School of economics, criticized these tariffs on the grounds that tariffs are bad for economics. For example, political commentator Ben Shapiro has stated on numerous occasions that tariffs are bad for the economy. He describes them as a tax on everyone for the benefit of the few. Are tariffs ever allowed according to his view? According to Shapiro, they should only be used for national security reasons or “in the name of liberty.”

“As JFK put it, ‘We will bear any burden in the name of liberty,’ and, I’m sorry, but getting slightly more expensive goods from China in the name of liberty doesn’t seem like all that much of a burden to bear to help the people of Hong Kong, who are flying the American flag while they are protesting for their freedom.”

– Ben Shapiro, Practicality vs. Morality?

So, we can use tariffs as a tool for political change in a foreign power, but not to protect national industries and jobs. While other capitalists disagree with this view, the implications of this position are astounding when you consider that we are dealing with a socialist dictatorship.

Socialism is an Economic Good for Capitalists

This is a tacit admission that, except when national security concerns apply, or when we want to help influence some form of political change in the name of liberty, socialism is an economic good for capitalism. Is this a ridiculous assertion? Consider the following points.

• The capitalist justification for free trade is that we can take advantage of lower labor and production costs in foreign countries. However, when you include socialist regimes in this, you are saying that a socialist workforce is more economically competitive than a capitalist one. Socialism is fine (for them), as long as it lowers ourcosts.

• Labor costs are lower in other countries when they have a lower standard of living or worse working conditions and wages than we do. When you include socialist regimes, it means that we accept the fact that some Chinese workers are practically slave labor, and some factories that produce products for American companies have such bad conditions that they had to have anti-suicide campaigns and put up nets between the company barracks in which the workers live to catch those who try to jump to their deaths.

• Capitalists proclaim with pride that we are a service and information provider for the world. This is the idea of “comparative advantage,” where different national economies will specialize in what they do best. Many denounce the idea that we should remain competitive in manufacturing, either traditional or new, or declare that we cannot do so. What about those workers in our own manufacturing industries? Well, they need to get themselves retrained to participate in those areas where we have a comparative advantage. In other words, the reason we outsource the production of our most advanced consumer computers and electronics is because a totalitarian socialist regime like China is simply better at it than our capitalist society – and that must be good for us because there is no need for us to improve in those areas.

These positions can only be explained by a view that considers the so-called global economy to be the primary and most important economy, followed by the national economy. Other capitalists may consider the national economy to be primary and the global economy secondary but, for those of the former view, socialism is treated as an economic good for capitalist markets.

In the end, President Trump backed down on the tariffs in hopes that it would keep our prices reduced through the Christmas shopping season. Does this not show that we have become economically dependent on foreign countries, including China?

What can Chinese President, Xi Jinping, say about this? If I were him, I would be using this as propaganda to the Chinese people, that it proves socialism is superior to capitalism, that capitalist production cannot compete with socialist production, and that people who live under capitalism are not able or willing to do the work necessary to produce what they want because they are too lazy and greedy, which is why they depend on socialist workers.

Socialism is not an Economic Good for Distributists!

While trade is generally good, distributism’s emphasis on supporting the local economy means that it should not be at the expense of economic independence. One of the foundational ideas behind distributism is that the more economically dependent you are, the more politically unfree you are. This applies to the national economy just as much as it does to the local economy. The views of capitalists seem to be divided between those who consider the global economy as primary and those who consider the national economy as primary. They don’t seem to give local economies much consideration. Distributists consider the local economy as primary. If the country is filled with a lot of strong and stable local economies, then the national economy will be strong and stable.

When considering trade policy, a nation should look to maintain a level which won’t cause too much economic turmoil for its people if trade gets interrupted. It should also not be the cause of the demise of your own producers. Some capitalists will declare that you are just forcing your own people to accept inferior products or to endure higher prices. They are ignoring the fact that many of their country’s top competitors in international markets initially grew under the protection of tariffs against foreign competition. Markets are different from country to country.

The labor market in the United States is different than the labor market in communist China. Why do any of our capitalists seem to insist that making these two labor markets compete against each other constitutes “free trade?” Are the wages comparable? Are the working conditions comparable? Are worker rights comparable? All of these can influence the cost of labor, and a tariff can be used to actually make them comparable.

Material costs and rents in the United States are different than those in communist China. Even when you factor in the competitive advantage given to many of our large corporations from government subsidies and preferential legislation, does it even come close to the level of government support of a socialist regime like China? No, the competitive advantage seem to be mainly against smaller competitors in our own country, which is why so many of our large corporations outsource production to China and other foreign countries. Tariffs can be used to protect our companies from this.

If a country is lacking development in a particular industry that impacts its economic independence, it cannot compete against those foreign companies that have already developed. A tariff on a particular industry will allow that industry to grow and develop within its own market.

Distributism would rather see as many people as possible engaged in productive work in small independent businesses supporting their local economy. We do not advocating leaving them at the mercy of corporate interests that drain local economies and leave people dependent on government assistance. We do not advocate corporate interests that consider it better to have workers in a socialist regime produce the products we need than our own people.

Printable version

References:

Why Trump’s tariffs on China are a big deal; CNN Business
https://money.cnn.com/2018/03/21/news/economy/trump-trade-china-intellectual-property-301/index.html

Leaked Document Shows Potential Food & Fuel Shortage after No-Deal Brexit; Subverse News
https://www.youtube.com/watch?v=1MqO9wQjKno

Trump’s 45% tariff on Chinese goods is perfectly calculated; Los Angeles Times Op-Ed
https://www.latimes.com/opinion/op-ed/la-oe-navarro-trump-trade-china-tariffs-20160721-snap-story.html

Yes, Ben Shapiro is Still Wrong on Tariffs. Here’s Why; American Greatness
https://amgreatness.com/2018/03/19/yes-ben-shapiro-is-still-wrong-on-tariffs-heres-why/

The Second Cold War; Ben Shapiro, Ep. 833 (starting @ 40:00)
https://www.youtube.com/watch?v=pe_ySUG4Pco

Practicality vs. Moral Character?; Ben Shapiro, Ep. 839 (starting at 8:45)
https://www.youtube.com/watch?v=3NGdtBTnH0

Trade Trucers Push President Trump to Back Off on China Tariffs; Breitbarthttps://www.breitbart.com/economy/2018/11/29/morechinatrucetalk/

Custody of Nonbiological Children—Burden and Proof Issues

In the matter of R.L. v. M.A., Case No.: 2740 EDA 2018, the Pennsylvania Superior Court delved into the leading edge of family law when it ruled upon whether an individual in a same-sex relationship can be awarded custody of a child with whom she has no biological relationship.

In R.L., the appellant, M.A., entered into a romantic relationship with R.L. (appellee) in 2012. During the relationship, the parties decided to impregnate the appellant via artificial insemination using sperm from the appellee’s brother.

The couple proceeded to prepare for the birth of the child by setting up the baby’s room and purchasing typical baby supplies. R.L. was present for the baby’s birth, chose the baby’s first name, and gave the baby her own surname. Not long after the child was born, the couple broke up.

Instead of litigating, the parties entered into an informal agreement for the custody of the child. The child lived primarily with the appellant and spent every other weekend with the appellee. This arrangement lasted until 2014 when the parties informally elected to equally share custody of the child. This 50/50 arrangement lasted nearly four years until R.L. called the daycare center where the appellant worked and which the child attended. R.L. complained that the appellant was having too much contact with the child while in daycare and even inappropriately (in her opinion) removed the child from the daycare premises.

In response to the above-mentioned telephone call, the appellant unilaterally discontinued their customary 50/50 arrangement, which led to R.L. filing a complaint for custody of the child. R.L. was granted in loco parentis over the child fairly quickly, which conferred R.L. standing to have custody of the child. The matter went to trial and the trial court entered an order granting each party equal custody, alternating on a weekly basis; the appellant appealed this order to Superior Court.

On appeal, the appellant argued that the appellee did not meet the burden of clear and convincing evidence that a nonparent should have custody equal to a parent, and that the court erred in weighing the evidence presented.

In support of her argument that appellee did not meet her burden of proof, the appellant argued that 23 Pa.C.S. Section 5327 requires a trial court to apply a presumption in favor of parents over nonparents, and, as a “nonparent,” the appellant did not meet her burden to overcome the presumption in favor of the appellee. The appellant also argued that the trial court erred in considering the parties’ informal shared custody arrangement when rending its decision.

In making its ruling, the Superior Court acknowledged that “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” In saying that, the Superior Court also recognized that this principle does “not preclude an award of custody to the nonparent.”

Additionally, the court made it clear that the “best interests” standard is still the touchstone when entering a child custody order. Furthermore, once someone is granted in loco parentis, she need not demonstrate that the other party is unfit, but rather merely demonstrate that it is in the best interests of the child (as proven by clear and convincing evidence) to be with the nonparent party.

The Superior Court ruled that the appellant did meet her burden of clear and convincing evidence, specifically by demonstrating that the parties lived out an agreed shared custody arrangement for a number of years, indeed most of the child’s life, and only discontinued that arrangement due to the appellee being upset over the appellant’s telephone call to the daycare center, as opposed to anything directly related to custody.

The Superior Court also indicated that the appellant’s interpretation of the law is incorrect. Namely, while the scales do tip heavily toward a parent over a nonparent, there is a distinction as to whether that nonparent is seeking shared, as opposed to primary, custody. As she was only seeking shared custody, the appellant only had the burden of clear and convincing evidence to bring the scales even with the appellee. Only if the appellant were seeking primary custody would she have to tip the scales hard toward herself under the burden of clear and convincing evidence.

Ultimately, a nonparent seeking shared custody of a child has to have standing and demonstrate by clear and convincing evidence that such a custody arrangement is in the best interest of a child.

This article was originally published in The Legal Intelligencer on June 27, 2019 and can be found here.

Superior Court Navigates ‘Twists and Turns’ in Case Involving Paternity Tests

Pennsylvania Superior Court recently heard a rather complex and tangled case regarding how, when and what significance a paternity test may have in determining the paternity of a child. In the matter of H.Z. v. M.B., 2019 Pa.Super. 33, the Superior Court offered insights that may be instructive for other similar matters, especially in cases where attempted clever tactics and intrigue are elements.

In H.Z., the mother, seeking child support, filed for paternity testing in New York shortly before the child was born in March 2005. The results of the testing excluded M.B., the putative father. Consequently the parties entered into a stipulation providing that the mother would discontinue her paternity and support actions against M.B. with prejudice.

Two years later, the mother hired a private investigator to surreptitiously secure a sample of the father’s DNA. Specifically, the investigator followed M.B. to a Starbucks where he picked M.B.’s discarded coffee cup out of a trash can, and submitted it for genetic testing that resulted in a finding of a probability of over 99 percent percent that M.B. is the father of the child.

About a year later, the results of the investigator’s test motivated the mother to file a new paternity case against M.B., this time in New Jersey, where the mother had relocated. The case was transferred to Pennsylvania as New Jersey had no jurisdiction over M.B., who was a resident of Pennsylvania. A few months later, the parties again entered into a stipulation dismissing the mother’s case.

Undeterred, the mother almost immediately filed a third case, this time in Montgomery County, to which M.B. filed preliminary objections, a motion to dismiss and a motion to stay the testing, primarily on the basis of res judicata. While M.B. successfully had the Starbucks test excluded as evidence, per a motion in limine, the case, for some reason, was not scheduled for a hearing until about five years later. After that hearing the trial court ordered M.B. to submit to genetic testing once again. The father appealed, primarily on the basis of res judicata. In an unpublished opinion, the Superior Court ruled that the stipulation entered in the New York matter was in violation of New York law and, therefore, not controlling.

Finally, after another year’s time, M.B. submitted to a buccal swab genetic test requested by the mother’s petition requesting blood and hair testing, which again excluded M.B. as the father of the child. Upon receiving the result of this test, M.B. requested the dismissal of the case. The mother countered by requesting M.B. to submit to more rigorous testing on the basis that M.B.’s DNA samples had irregularities, and M.B.’s genetic profiles in the various tests all differed from one another which, she averred, means they did not come from the same person. The parties subsequently filed various motions seeking sanctions and striking filings. A trial court hearing on these issues was finally scheduled for December 2017.

At the hearing, the mother called two officials from the Montgomery County Domestic Relations Office who testified that, despite many years of experience and their knowledge of  hundreds of cases, neither have had a case where the DNA sample they collected was insufficient for testing. In opposition to these witnesses, M.B. called a DNA lab director who testified that there was no evidence of tampering, no issues with the chain-of-custody of the DNA sample, and no issues with testing protocols. While the lab director did note that the DNA that was recently tested did degrade, she could not come to a definite conclusion as to why.

After some of the witnesses testified at the hearing (as described above), the trial court scheduled at least two more days of testimony. Without explanation or apparent reason, the trial court suddenly entered an order concluding that M.B. is the father and directed that an appropriate support order be awarded. M.B. immediately appealed to the Pennsylvania Superior Court.

On appeal, M.B. argued that the mother’s case should be dismissed on the basis that the Montgomery County test excluded him as father. M.B. specifically argued that a paternity hearing could only be scheduled if the results of a genetic test did not indicate that the putative father was not excluded from being the father. Consequently, per M.B.’s argument, in the instant matter, as the Montgomery County test excluded him as the father, the aforesaid rule required the mother’s case to be dismissed. The Superior Court rejected this argument and decided that the rule does not limit the scheduling of a hearing only when a test does not indicate an exclusion. The court also pointed out that the rule does not provide that a genetic test—by itself—is sufficient to establish paternity but, instead, indicates that a hearing on the reliability of genetic testing is permissible. The Superior Court also found that Rule 1910.15(d)(4) sets forth “a clear course of conduct addressing every possible result of the genetic testing” and M.B.’s request for dismissal was not relief afforded to him by the rule.

M.B. further argued that the Uniform Act on Blood Tests to Determine Paternity (23 Pa.C.S.A. Section 5104) eliminates any discretion on the part of the trial court to rule in this matter. Superior Court ruled that the aforesaid statute does not apply as no blood test ever took place in this matter, rejecting M.B.’s argument that it applies to all manner of genetic testing, not just blood testing.

M.B. then argued that 23 Pa.C.S.A. Section 4343 also requires the dismissal of an action for paternity when a man is excluded from paternity after genetic testing. The court rejected this argument as well, pointing out that the statute cited by M.B. actually directly opposes his argument. The Superior Court noted that the statute “does not provide that genetic tests are conclusive of the issue of paternity,” but such a determination may only be made by “a court in a civil action.” Additionally, the statute also allows for additional testing if a party contests the initial test.

M.B. proffered a cursory argument that additional testing would violate his Fourth Amendment rights under the U.S. Constitution. However, as he did not raise this argument in a timely manner, the Superior Court did not consider it. Instead, it indicated that additional testing may be permitted if the first test can be demonstrated to be unreliable by the preponderance of the evidence.

M.B. finally argued that the trial court abused its discretion by basing its ruling on excluded evidence (the Starbucks cup) and the Montgomery County test (which he argued had no facts to suggest it was unreliable). The Superior Court was sympathetic to this particular argument, however it directed its focus to the fact that the trial court never completed the record due to inexplicably entering an order before finishing the hearing. As a result, the court could not sufficiently review the facts and evidence in the case as it was left incomplete. Indeed, the Superior Court ruled that 23 Pa.C.S.A. Section 4343 affords the mother the right to an additional genetic test at her own expense as a matter of right.

After all of the twists and turns in this case, the Superior Court ruled that the trial court committed an abuse of discretion when it ruled that M.B. is the father as the hearing was not complete. The Superior Court ultimately ruled that an additional test is to be administered if no stipulation between the parties is reached. If the new test indicates M.B. is the father, then a hearing may be scheduled to determine the reliability of the test. If M.B. is excluded as the father, then the parties may proceed to a hearing on the issue of paternity. If any additional testing is requested, then evidence of any prior tests’ unreliability must be presented, and Fourth Amendment implications can be considered. As a result, the trial court’s order was vacated and the matter was remanded for further proceedings and testing.

May this case be a warning to those who think that genetic testing to determine paternity speaks conclusively as to who a child’s father is or is not. While modern technology has made significant contributions in this area, there still remains sufficient doubt to warrant other forms of evidence and inquiry before a court.

This article was originally published in The Legal Intelligencer on March 19, 2019 and can be found here.