RUTH FISH, APLT. V. ROBERT BEHERS, JR. (Dissenting Opinion)

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[J-185-1998] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT RUTH FISH, Appellant v. ROBERT BEHERS, JR., Appellee : : : : : : : : : : : : : No. 27 W.D. Appeal Dkt. 1998 Appeal from the Order of the Superior Court, entered February 6, 1997 at No. 957PGH95, reversing the Order of the Court of Common Pleas of Allegheny County, Family Division, entered May 9, 1995 at No. FD-94-04408. 690 A.2d 1171 (Pa. Super. 1997) SUBMITTED: September 22, 1998 DISSENTING OPINION MADAME JUSTICE NEWMAN DECIDED: DECEMBER 3, 1999 I join Justice Nigro’s Dissenting Opinion. I write separately only to emphasize my view that the presumption of paternity is rebuttable and does not prohibit the court from ordering Mr. Behers to submit to paternity tests.1 Equally, the doctrine of estoppel should not bar these tests. 1 As we set forth in Brinkley, the presumption does not attach because the marriage is not intact, and there is no marriage to preserve. Brinkley v. King, 549 Pa. 241, 250, 701 A.2d 176, 180 (1997).