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[J-58-2003] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT IN RE: ADOPTION OF: S.A.J. : : : : : : : : : : : : : : : No. 163 MAP 2002 Appeal from the Order of the Superior Court entered March 19, 2002 at No. 899MDA2001 which Reversed and Remanded the Judgment of the Court of Common Pleas of Berks County, Orphans' Court Division entered May 2, 2001 at No. 76828.

APPEAL OF: S.S.

ARGUED: May 13, 2003

OPINION MADAME JUSTICE NEWMAN Decided: December 17, 2003

In this case, we determine whether the doctrine of judicial estoppel bars the attempts of a putative father to obtain custody of a child and vacate an adoption decree, eleven years after he denied paternity in a support proceeding. For the reasons that follow, we affirm the decision of the Superior Court, which held that the putative father was judicially estopped from making his claim.

FACTS AND PROCEDURAL HISTORY.

On February 16, 1989, S.A.J. (Child), was born to T.L.D. (Mother), an unmarried woman, who had been sexually involved with two men at the time of conception: S.S., who is the putative father (Appellant), and B.W.1 Appellant and Mother had never lived together, and by the time of the birth, were no longer involved in a "boyfriend-girlfriend" relationship. The birth certificate did not name Appellant or B.W. as the natural father.

On May 17, 1989, Appellant filed for partial custody of Child, and Mother admitted that he was the father in her reply. The trial court issued two temporary custody orders by agreement of the parties, granting visitation every other week for two hours. Appellant made the visits for approximately a year.

On February 15, 1990, Mother filed for child support. Pursuant to her Complaint, she and Appellant appeared at a support conference on May 8, 1990. At the conference, Appellant denied paternity in a notarized statement filed in the Domestic Relations Section of the trial court. He indicated: "I . . . deny that I am the father of said child. I request trial to determine paternity." On the same day, the trial court issued an Order directing that the case be listed for trial to determine paternity. Reproduced Record of Appellant (RR) at 9.

Appellant did not take further action on that case or obtain a blood or DNA test for paternity determination. Because there was no docket activity, the Prothonotary of Berks County issued a Notice of Termination pursuant to Berks County Rule of

1

Mother testified that there might have been one other man, as well.

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Administration 19012 on January 12, 1993, and the court terminated the case on April 19, 1993.

Following the denial of paternity by Appellant, the trial court vacated the visitation privileges by Order of May 10, 1990, and Mother withdrew her Complaint for child support on July 27, 1990. Appellant did not appeal the Order and never requested reconsideration or a further hearing.

For more than eleven years, Appellant did not visit Child or support her. He saw her once at a skating rink and talked with her "off and on" for two hours. In eleven years, he gave her presents on two occasions: gift certificates for Christmas in 2000, which were returned to him, and a gift certificate for her birthday, which she accepted.

In March of 1991, Mother began living with B.D. (Husband) and married him on May 8, 1993. On November 16, 2000, Husband filed a Petition for Adoption with respect to Child, and Mother and B.W., the other potential father, consented. B.W. signed a Consent of the Putative Father of Adoptee, which stated "I understand that I have been identified by [Mother] to be the putative biological father of [Child] . . . . I admit that I have been named as the putative biological father. I further understand that by signing this Consent I do not admit that I am the biological father." RR at 14. Mother was never married to B.W. and never lived with him, although she was having sexual

2

Rule 1901 provides for termination of an inactive case in which no docket activity has taken place for a period of 670 days, after 15 days' notice to counsel or to the party if not represented. The notice includes the following: WARNING "The . . . case will be subject to termination . . . if no docket activity occurs within 60 days after the service of this notice . . . . Docket activity within such 60 day period . . . or the filing of such motion . . . with a request for a hearing will prevent" automatic termination.

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relations with him at the time that Child was conceived. Neither Husband nor Mother identified Appellant in the Petition for Adoption or provided him with notice of Husband's action to adopt Child. In the adoption proceeding, instead of using the attorney Mother used in the 1989 and 1990 support and custody matters, Husband and Mother hired someone else who did not know of the existence of Appellant.

On January 22, 2001, Appellant filed a Complaint for Partial Custody, not knowing that Husband had filed a Petition for Adoption on November 16, 2000. When Appellant learned on February 2, 2001, that the trial court granted a Final Decree approving the adoption of Child by Husband, he filed a Petition to Vacate Judgment on March 8, 2001.

A hearing was held on May 2, 2001 with respect to this Petition. Mother testified that she had been living with Husband since Child was two years old and that she married Husband when Child was four years old. Child had never known a father other than Husband, who helped raise her. Mother and Husband were her sole support. RR at 35. When Appellant denied paternity in 1990, Mother decided to raise Child by herself, and then with the help of Husband. Child wanted Husband to adopt her and to be part of his family.

Mother testified that when she and Husband hired the adoption attorney, she did not identify Appellant as the natural father, as none was named on the birth certificate, but she told the attorney that B.W. was the father. She said that she did this because she had been having sexual relations with B.W. at the time of conception and because Appellant had denied paternity. She also stated that she obtained the consent of B.W., not Appellant, because "I needed one consent." RR at 34. She stated that she had

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identified Appellant as the natural father in her Complaint for child support because "he was pursuing me. He took me into court first. I did nothing to take him in except for the support action." RR at 29. At the time of this hearing, Child was twelve years old and living as a family with Mother and Husband. In the ten years that Mother, Husband, and Child were living together, Appellant did not help in any way, visit, provide support, or make any demands to be part of the life of Child.

On June 25, 2001, following the hearing, the trial court granted the Petition to Vacate Judgment. The trial judge, who was the same judge who signed the adoption decree on January 31, 2001, expressed his understandable displeasure that Mother and Husband did not notify Appellant of the proceedings or disclose his existence to the court. Ascribing reprehensible motives to Mother, the trial court issued an Opinion on June 25, 2001, and granted the Petition to Vacate Judgment. The trial court lamented the effect its ruling would have on Child stating, "because of what has happened here, a child's life is once again thrown into chaos . . . . Once again, the relative innocent is the one who pays the price for the apparent inappropriately expedient behavior of the adults in her life." Opinion of the Trial Court at 13.

On appeal, the Superior Court reversed, determining that Appellant was judicially estopped from challenging the adoption, based on his denial of paternity at the prior child support proceeding and his successful avoidance of paying child support over the entire twelve years of the life of Child. Judge Cavanaugh issued a dissenting opinion, which asserted that judicial estoppel should not preclude the claim of Appellant. Because Mother herself had unclean hands, as a result of her inconsistent statements, she should not be able to invoke an equitable principle, argued Judge Cavanaugh.

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We granted allowance of appeal to consider the interplay between the doctrines of judicial estoppel and unclean hands and to determine whether the earlier denial of paternity should now preclude Appellant from contesting the adoption of Child, where Mother and Husband did not give him notice of the adoption proceedings.

DISCUSSION

We address here the issue of whether the denial of paternity by Appellant in the 1990 support hearing judicially estops him, eleven years later, from vacating a decree allowing the adoption of Child by Husband.

Our scope of review with respect to the trial court's grant of the Petition to Vacate Judgment "is limited to determining whether the [trial court's] findings are supported by competent evidence or whether the court abused its discretion or committed an error of law." In the Matter of the Adoption of Christopher P., 389 A.2d 94, 98 (Pa. 1978) (internal citations omitted). For the reasons that follow, we conclude that the trial court committed an error of law by not applying judicial estoppel to bar the claims of Appellant.

Our Court has defined judicial estoppel and its appropriate application. "As a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained." Trowbridge v. Scranton Artificial Limb Company, 747 A.2d 862, 864 (Pa.

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2000) (citing Associated Hospital Service of Philadelphia v. Pustilnik, 439 A.2d 1149, 1151 (Pa. 1981)).3

In Trowbridge, we reviewed the question of whether judicial estoppel barred a claim made by an individual pursuant to the Pennsylvania Human Relations Act (PHRA) that her job termination resulted from illegal discrimination under the PHRA, when she was receiving Social Security disability benefits based on her sworn statement that she was unable to work because of her disabling condition. We reiterated that the purpose of judicial estoppel is "to uphold the integrity of the courts by 'preventing parties from abusing the judicial process by changing positions as the moment requires.'" Trowbridge at 865 (quoting Gross v. City of Pittsburgh, 686 A.2d 864, 867 (Pa. Cmwlth. 1996)). In Tops Apparel Mfg. Co. v. Rothman, 244 A.2d 436 Whether successful maintenance of the prior inconsistent position of litigant is strictly necessary to implicate judicial estoppel in every case, or whether success should instead be treated as a factor favoring the doctrine's application, is the subject of some uncertainty. See generally Michael D. Moberly, Swapping Horses in the Middle of the Stream: A Comparison of the Judicial Estoppel Doctrine in Arizona and Nevada, 32 Ariz. St. L.J. 233, 254 (2000) (observing that jurisdictions are divided over the "successfully maintained" prerequisite, stating that this is "[p]erhaps the most debated prerequisite to the application of judicial estoppel," and citing cases for both views). While some prior decisions of this Court appear to indicate that it is always a requirement, see, e.g., Associated Hosp. Svc. of Phila. v. Pustilnik, 439 A.2d 1149, 1151 (Pa. 1981) ("[A]s a general proposition, a party to an action is estopped from assuming a position inconsistent with his assertion in a previous action, if his contention was successfully maintained." (internal quotation marks omitted)), others seem to suggest that a broader application of the doctrine may be appropriate. See, e.g., Sunbeam Corp. v. Liberty Mut. Ins. Co., 781 A.2d 1189, 1192 (Pa. 2001) (noting that regulatory estoppel (a form of judicial estoppel) was applicable whether or not the Pennsylvania Insurance Department relied upon the insurance company's prior inconsistent position); In re Pivirotto's Estate, 97 A. 80 (Pa. 1916) (applying judicial estoppel to the wife of a decedent because she helped her children contest her husband's will, although the will was never avoided). Because we ultimately conclude, infra, that Appellant prevailed in the earlier proceedings, we need not definitively resolve this question here.
3

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(Pa. 1968), our Court stated that "[a]dmissions . . . contained in pleadings, stipulations, and the like are usually termed 'judicial admissions' and as such cannot be later contradicted by the party who made them." Id. at 438 (internal footnote omitted). In Tops, we noted our longstanding reliance on this principle and stated that "[w]hen a man alleges a fact in a court of justice, for his advantage, he shall not be allowed to contradict it afterwards. It is against good morals to permit such double dealing in the administration of justice." Id. at 438, n.8 (citing Wills v. Kane, 2 Grant 60, 63 (Pa. 1853)). "Federal courts have long applied this principle of estoppel where litigants play 'fast and loose' with the courts by switching legal positions to suit their own ends." Trowbridge at 865 (quoting Ligon v. Middletown Area School District, 584 A.2d 376, 380 (Pa. Cmwlth. 1990)).

As in Trowbridge, in order to determine if judicial estoppel were appropriately applied by the Superior Court, we must address the following questions: (1) did Appellant assume an "inconsistent" position in 2000 when he claimed he was the natural father, after denying paternity in 1990; and (2) was his contention "successfully maintained?"

With respect to inconsistent statements, in 1990, Appellant denied paternity of Child in a support proceeding in the trial court. Eleven years later, in that same forum, he claimed he was the natural father and filed to vacate the adoption decree that was issued to Husband. There is little doubt that "I am not the father" and "I am the father" are directly opposing statements. However, mere inconsistency is not enough.

In deciding Trowbridge, we were guided by a decision of the Supreme Court of the United States in Cleveland v. Policy Management Systems Corp., 526 U.S. 795

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(1999), which had decided an analogous issue involving whether an individual's application for, and receipt of, social security disability benefits barred a subsequent lawsuit under the Americans with Disabilities Act of 1990 (ADA). The Supreme Court held that the pursuit and receipt of social security disability benefits did not automatically estop the recipient from pursuing an ADA claim, as there could be situations where someone could be totally disabled for social security purposes and yet could perform essential job functions if "reasonable accommodations" were made. The Court explained that "[a]n SSA representation of total disability differs from a purely factual statement in that it often implies a context-related legal conclusion, namely, 'I am disabled for purposes of the Social Security Act.'" Id. at 802. It contrasted this with conflicts arising from statements about "purely factual matters, such as 'The light was red/green,' or 'I can/cannot raise my arm above my head.'" Id. at 802. The Court noted that where there was an apparent contradiction between the ADA and the disability claims, the "plaintiff cannot simply ignore the apparent contradiction . . . . Rather, she must proffer a sufficient explanation." Id. at 806.

"I am not the father" and "I am the father" are clearly two "directly conflicting statements about purely factual matters," akin to the example cited by the Supreme Court of a green light or a red light. However, as we said in Trowbridge, even though Appellant made a plainly inconsistent statement, we are obligated to assess whether he had the opportunity to proffer a sufficient explanation for the contradiction.

In the case sub judice, Appellant was permitted to explain his inconsistent statements at the May 2, 2001 hearing on his Petition to Vacate Judgment. His account does not constitute a sufficient explanation for his contradiction. He claimed that he

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denied paternity on the advice of counsel and to make sure that Child was his. RR at 22, 26.

Despite Appellant's words of explanation, his actions, or, more appropriately, his failure to act during the life of Child over the past twelve years, belie his assertion that he wanted to establish paternity. When he denied paternity, Child was just over one year old. When Appellant filed for partial custody and then to vacate the adoption by Husband, Child was eleven years old. In all that time, he never took a blood test or DNA test to establish paternity. He also never provided support for Child, never played any role in her life, and never made any demands on Mother and Husband to do so. He did not contest the termination of visitation in 1990 and did not pursue his 1990 case for partial custody, which the court terminated in 1993 after issuing a warning and notice to him. The warning and notice clearly advised Appellant that because there had been no docket activity for a period of 670 days, the case would be dismissed unless he took action within 60 days. We conclude that he did not proffer a satisfactory reason to overcome his two inconsistent statements.

Next, we review whether his contention was "successfully maintained." In Trowbridge, the application for, and receipt of, disability benefits resulted in successful maintenance of the claimant's position. In Cleveland, the claimant applied for and received disability benefits, as well. In each case, the individual who made inconsistent statements successfully established her claim and reaped its reward (i.e., payment of benefits). Had either claimant not been awarded benefits, they would not have "successfully maintained" their position for purposes of judicial estoppel. The Supreme Court of the United States in Cleveland explained this, stating that "if an individual has merely applied for, but has not been awarded, [disability] benefits, any inconsistency in

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the theory of the claims is of the sort normally tolerated by our legal system." Cleveland at 805.

In the instant case, Appellant's denial of paternity, while not resulting in payment of money to him, conferred significant economic advantage on him. The Superior Court correctly determined that "[Appellant's] denial of paternity was successfully maintained by the court, which accepted his denial of paternity and excused him from child support." In re Adoption of S.A.J., 797 A.2d 299, 301 (Pa. Super. 2002), rearg. denied, May 23, 2002. The trial court accepted his denial in 1990 and proceeded accordingly. It issued two orders: the first in 1990, extinguishing his visitation rights, and the second, in 1993, terminating his custody suit, for his failure to prosecute it for more than four years. Mother, too, acted, withdrawing her support suit, and from then on, Mother supported Child. Appellant, in the twelve years following his denial of paternity, reaped the concomitant benefits: he paid no support and had no responsibility for Child.

Having determined that Appellant's actions met the structural criteria for imposing judicial estoppel, we must assess whether they effectuated the harm to be prevented by imposing judicial estoppel: i.e., an abuse of judicial process, resulting in an affront to the integrity of the courts. Trowbridge at 865. Appellant has taken liberties with the court system, insulting its integrity. First, he told the court that he was the father, when he filed for partial custody and visitation in 1989. That court granted him visitation rights because of what he said. Then, he told the same court that he was not the father in 1990, when Mother sought support. On that basis, the court terminated visitation. In 1993, the court gave him another chance to pursue his custody suit, which was dormant since 1990, when it issued a warning and notice that the litigation would be discontinued

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if no further action were taken. Appellant did not do anything, and the court terminated the litigation.

Appellant claims that judicial estoppel does not apply because the issue of paternity was never adjudicated.4 He ignores the holding of this Court in Trowbridge and the Supreme Court of the United States in Cleveland, neither of which involved adjudications. Each of those cases addressed the applicability of judicial estoppel to the apparent conflict created between signed applications for disability benefits and discrimination suits under the PHRA and ADA, respectively.5

Appellant believes that the Superior Court opinion in Ham v. Gouge, 257 A.2d 650 (Pa. Super. 1969), supports his argument that judicial estoppel requires an adjudication of paternity. Although the court in Ham discussed the principle of estoppel, it did not address judicial estoppel.

4

It would appear that he has confused the doctrine of judicial estoppel with collateral estoppel. Collateral estoppel is used to protect the finality of judgments and to conserve judicial resources . . . whereas judicial estoppel is concerned solely with protecting the integrity of the courts . . . . And though collateral estoppel may not be employed unless the underlying issue was actually litigated . . . there is no such requirement for the use of judicial estoppel. Montrose Medical Group Participating Savings Plan v. Bulger, 243 F.3d 773, 779, n.3 (3d Cir. 2001) (internal citations omitted).
5

In each of these cases, the Courts looked at the conflicts that arose from sworn statements made as part of the disability application process. These statements, which lead to the granting of benefits, are analogous to Appellant's notarized execution of denial of paternity, filed with the trial court.

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Appellant's assertion that the Superior Court erred in finding him judicially estopped from claiming fatherhood strains belief. It was up to him to prove his status of paternity through blood or DNA testing, and he chose not to do that. He never pursued the custody case he filed in 1990. He never requested the court to order blood tests pursuant to the Uniform Act on Blood Tests to Determine Paternity, 23 Pa.C.S.

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