No. 80-3-756, Appeal from the Order of the Superior Court at No. 1408 October Term, 1979, affirming the Order of the Court of Common Pleas of Northampton County, Civil Division, at No. 1978-C-3872, sustaining plaintiff's Preliminary Objections and dismissing defendant's Counterclaim.
George A. Heitczman, Bethlehem, for appellant.
Alfred P. Antonelli, Bethlehem, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ.
At issue on this appeal is whether, in an action to determine paternity and support obligations, an alleged father may raise as a valid defense or counterclaim an allegation that the mother deceived him into believing that she was practicing birth control when, in fact, she was not.
Appellee Orlanda Hughes gave birth to twins on August 1, 1978, and filed a complaint for support against appellant
Carl K. Hutt on December 7, 1978.*fn1 Appellant denied paternity and demanded a jury trial. He also filed a "counterclaim," alleging that appellee had ceased taking birth control pills without telling him because she wished to become pregnant, and that, after becoming pregnant, she had refused his request that she have an abortion. On the basis of these allegations, appellant demanded that judgment be entered against appellee, or, in the alternative, that he be reimbursed by appellee for any payments which he should be ordered to make toward the support of the twins. The Court of Common Pleas of Northampton County sustained appellee's preliminary objections and dismissed the "counterclaim." The Superior Court affirmed, Hughes v. Hutt, 286 Pa. Super. 585, 428 A.2d 673 (1980), and this Court granted allowance of appeal. Because we agree that appellant's claim is irrelevant to the determination of the issue of paternity and invalid as either a defense or a counterclaim to an action for support, we affirm.
The procedure for determining paternity is governed by section 6704(g) of the Support Law, which provides:
"Trial of paternity. -- Where the paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court without a jury unless either party demands trial by jury. The trial, whether or not a trial by jury is demanded, shall be a civil trial and there shall be no right to a criminal trial on the issue of paternity. The burden of proof shall be by a preponderance of the evidence."
42 Pa.C.S. § 6704(g). As the court of common pleas properly concluded, this statute provides for a jury trial with respect to the determination of paternity alone. The language of the statute is unambiguous: if a jury trial is demanded, the jury is to decide whether the defendant is the father of the child for whom ...