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filed: October 1, 1982.


No. 412 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Luzerne County at No. 2303 of 1978.


F. Charles Petrillo, Wilkes-Barre, for appellant.

Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellee.

Chester B. Muroski, District Attorney, Wilkes-Barre, for participating party.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Cavanaugh

[ 305 Pa. Super. Page 181]

In this appeal we are asked to decide whether indigent defendants in civil paternity actions have a constitutional due process right to appointed counsel.

On October 5, 1978, appellee, Cleoria Corra, filed a complaint*fn1 in the Court of Common Pleas of Luzerne County seeking support for Lawrence Paul Corra from appellant, Raymond Coll, Jr., the alleged father of her son. On February 13, 1979, appellant, represented by Legal Services of Northeastern Pennsylvania for the limited purpose of pursuing appellant's request for counsel,*fn2 filed a motion for the

[ 305 Pa. Super. Page 182]

    appointment of a Public Defender. In support thereof, appellant filed an affidavit of indigency*fn3 and also a Statement of Defense indicating that he planned to deny paternity and required legal representation. Trial was delayed pending resolution of appellant's motion and, on August 2, 1979, the Luzerne County Court of Common Pleas en banc denied appellant's request for a Public Defender. In a per curiam order of February 14, 1980, this Court granted appellant's petition for interlocutory review by permission. Hence this appeal.*fn4 For the following reasons, we reverse.

The Fourteenth Amendment to the United States Constitution provides, in part, that "No state shall . . . deprive any person of life, liberty, or property, without due process of law."*fn5 Due Process is a concept incapable of exact definition. Rather it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). In Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971), the Supreme Court held that "due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through

[ 305 Pa. Super. Page 183]

    the judicial process must be given a meaningful opportunity to be heard."

This is a case of first impression in this Commonwealth and we, therefore, are without decisional or statutory guidance in determining whether indigent defendants have a due process right to court-appointed counsel in civil paternity actions. It is clear, however, that a resolution of this question cannot be reached by applying a wooden civil/criminal distinction. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings). That approach has long since been abandoned in favor of emphasis on the nature of the threatened deprivation. See In re Hutchinson, 279 Pa. Super. 401, 421 A.2d 261 (1980) (allocatur granted) (civil commitment hearings). As Judge Hoffman commented in Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 171-172, 339 A.2d 764, 772-773 (1975), cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976): "Euphemistic terminology is not determinative of the application of the Due Process Clause . . . We must consider the reality of the lower court's commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between 'criminal' and 'civil' proceedings meaningless." Recently summarizing the decisional law on the right of indigents to appointed counsel, the Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649, rehearing denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981), noted:

In sum, the Court's precedents speak with one voice about what "fundamental fairness" has meant when the Court has considered the right to appointed counsel; and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against ...

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