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SUE JOJEAN HORTON v. RUSSELL R. APPLEBY (02/24/84)

submitted: February 24, 1984.

SUE JOJEAN HORTON, APPELLANT,
v.
RUSSELL R. APPLEBY



No. 00074 HARRISBURG 1983, Appeal from the Order in the Court of Common Pleas of York County, Civil No. 80-S-1445

COUNSEL

John D. Miller, Jr., York, for appellant.

Russell E. Appleby, Airville, appellee, in propria persona.

Spaeth, President Judge, and Cirillo and Cercone, JJ.

Author: Spaeth

[ 333 Pa. Super. Page 377]

This is a paternity action. Appellant, as the child's mother, brought the action against appellee, and a jury returned a verdict in favor of appellee. We have concluded that the trial court erred in admitting certain evidence of appellant's character. We therefore reverse and remand for a new trial.

-1-

Appellant argues that the trial court erred in admitting testimony that she was 16 years old at the time of conception. This argument is without merit. Appellant's age was one of the background facts of the case, and the court could not very well have excluded evidence of it. See Gregg v. Fisher, 377 Pa. 445, 454, 105 A.2d 105, 110 (1954)

[ 333 Pa. Super. Page 378]

("'Evidence is admissible which tends to . . . show the origin and history of the transaction between the parties and explain its character.'" (quoting trial court opinion with approval)).

-2-

Appellant also argues that the trial court erred in admitting testimony that appellant was receiving public assistance and that the Department of Public Welfare required her to bring a paternity action in order to maintain her benefits. We agree with this argument, and since we are unable to say that the error was harmless, we reverse and remand for a new trial.

The evidence that appellant was receiving public assistance carried two inferences, both prejudicial to appellant: (1) that appellant was a lazy person; and (2) that appellant's child did not really need support payments because he would be taken care of through public assistance benefits if the jury failed to find in favor of appellant. The evidence was relevant only to the extent that it tended to show why appellant had brought a paternity action: if she did not, she would lose her public assistance benefits. This relevance, however, was marginal, for it did not tend to show any motive to bring a paternity action against appellee in particular. While appellant testified on cross-examination that she was told by the Department that as long as she was receiving public assistance, she "would have to take [appellee] to court," N.T. 18, on redirect-examination she explained that the Department did not require that she take appellee to court but only that she take the appropriate steps to establish paternity, no matter who the father was. N.T. 20. Given the prejudicial nature of the evidence and its marginal relevance, we hold that the trial court erred in ...


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