NO. 581 Philadelphia, 1981, Appeal from the Order of the Court of Common pleas of Philadelphia County, Family Court Division, at W.D. NO. 77419.
Richard B. Moore, Philadelphia, for appellant.
Louis S. Criden, Philadelphia, for appellee.
McEwen, Johnson and Hoffman, JJ. Johnson, J., files a concurring and dissenting opinion.
[ 314 Pa. Super. Page 186]
The sole issue under consideration in this appeal is whether appellant, a non-indigent male,*fn1 was denied due process when the lower court ordered him to proceed, without the benefit of representation by counsel, at a paternity hearing which resulted in a finding of paternity by the court and the entry of an order of support against him. We conclude that, under the circumstances set forth herein, the due process rights of appellant were violated and we reverse the order of the Common Pleas Court.
Appellee originally commenced this action by filing a petition for support on October 27, 1978. The docket reflects events of the seven subsequent listings:
12/8/78 Petition. Harris, J. Both present. Petitioner's attorney present. Defendant denies paternity for Anjela Nikkole (order entered by judge) Blood Studies granted. Defendant to pay for Blood tests. List February Trial, Civil Non-Jury.
[ 314 Pa. Super. Page 1873]
/1/79 Civil Non-Jury Trial. Meade, J. Defendant absent. Defendant's attorney present. Petitioner absent. Petitioner's attorney present. Defendant's attorney to accept service for Defendant. Continued to 4/18/79 for Civil Non-Jury Trial.
4/18/79 Civil Non-Jury Trial. Meade, J. Both present. Represented by Counsel. Continued next available list by agreement of Counsel. Attorneys will notify the court.
5/23/79 Civil Non-Jury Trial. Meade, J. Both present. Petitioner's attorney present. Continued Next Available List. Continued to 6/4/79 by agreement of Counsel pending possible agreement of parties. Court Room "E".
6/4/79 Civil Non-Jury Trial. Meade, J. Both absent. Continued next available list. Personal Service on both parties. Later: Petitioner's attorney appeared late. Request date certain to 7/24/79, Courtroom E.
7/24/79 Civil Non-Jury Trial. Zaleski, J. Both present. Defense attorney present. Petitioner's attorney present. Continued to 9/21/79 for C.N.-J.T.
9/21/79 Cvil Non-Jury Trial. Zaleski, J. Both absent. Petitioner's attorney present. At request of Petitioner's attorney, Petition withdrawn without prejudice.
The record indicates that when the petition was finally withdrawn at the seventh listing of the case counsel for appellee did so as a result of an informal agreement by appellant to make certain payments to appellee.
Appellee subsequently filed a new complaint for support on August 13, 1980, almost one year after she had withdrawn the first petition, in which she alleged that appellant had "failed to comply with an informal promise to support the child." Both parties appeared in court before the learned Philadelphia Common Pleas Court Judge Jerome A. Zaleski on January 8, 1981, at the initial listing of the case after the new complaint for support had been filed. At that time, appellant denied paternity and the court scheduled the case for trial without a jury on February 4, 1981.
[ 314 Pa. Super. Page 188]
Appellant appeared in court on that date, but without an attorney, despite a warning from the hearing judge at the previous listing that the matter would proceed to trial at the next listing whether or not appellant was represented by counsel. This admonition was delivered in an attempt to avoid any further delay in the conclusion of the case that had been listed for court on eight separate occasions. When the case was called for trial on February 4, 1981, appellant advised the trial judge that his counsel had withdrawn from the case and he had been unable to secure another attorney. The court, nonetheless, ordered the case to proceed to trial and, at the conclusion thereof, the trial judge entered a finding of paternity and imposed an order of support in the amount of $40.00 per week plus an additional $10.00 per week for the arrearage that had accumulated since the filing of the second complaint. New counsel filed this appeal on March 5, 1981 from the order of the Common Pleas Court which determined paternity and fixed the amount of support to be paid. New counsel also filed a petition for reconsideration on March 6, 1981 and, following a hearing on the petition, the petition was denied by order dated May 7, 1981.*fn2
This court, in a fine opinion by our distinguished colleague Judge James R. Cavanaugh, recently recognized that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process and, held that "the due process clause of the Fourteenth Amendment to the United States Constitution requires the appointment of counsel for indigent defendants in civil paternity actions in Pennsylvania". Corra v. Coll, 305 Pa. Superior 179, 193, 451 A.2d 480, 488 (1982). ...