No. 359 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of York County at No. 1651 SA 1982.
Daniel W. Shoemaker, York, for appellant.
Joseph R. Adamczyk, Jr., York, for appellee.
Wickersham, Watkins and Hester, JJ.
[ 337 Pa. Super. Page 198]
In this appeal we are asked to decide whether due process entitles a defendant in a paternity action to the effective assistance of counsel.
On March 4, 1980, Stella Banks, appellee herein, began an action in the York County Court of Common Pleas to determine support and/or paternity of a daughter born to her on November 17, 1979. Appellant, Willie Randle, was named as the child's father. Appellant denied paternity and requested that a blood test be performed. Thereafter,
[ 337 Pa. Super. Page 199]
appellant obtained an attorney and the case progressed through pre-trial proceedings.
On October 22, 1982, a jury trial was held on the issue of paternity. Appellant's counsel was present, but appellant was not. The trial court ordered the case to proceed in the absence of appellant. The sole witness to testify at the trial was appellee. In fact, she testified on her own behalf, and was also called as a witness by appellant's counsel. Appellant's counsel presented no other witnesses; nor did he present the results of the H.L.A. blood test, which, while more favorable to appellee, left considerable room for doubt as to the child's true paternity.*fn1 The jury's verdict was in favor of appellee and against appellant. No post-trial motions were filed by appellant's counsel.
The matter was eventually set down for a support hearing and at that point, appellant obtained his present counsel. In late March of 1983, appellant's new counsel filed a petition for leave to file motions for a new trial nunc pro tunc, on the basis of prior counsel's incompetence. Appellee filed an answer to the petition and both parties filed briefs. The petition was eventually dismissed by the trial court without a hearing on June 22, 1983. A support hearing held on August 22, 1983 resulted in a support order against appellant in the amount of $30.00 per week, and $40.00 per week on the arrearages. Appellant filed this timely appeal, questioning not the amount of support, but whether the court erred in refusing to grant his motion for a new trial nunc pro tunc.
To answer this, we must first decide whether appellant may raise the issue of ineffective assistance of counsel in an appeal from a civil proceeding in paternity. The trial court found that because a paternity proceeding is a civil case, incompetency of trial counsel alone will not support a motion for a new trial. As appellee states in her brief, "a party in an ordinary civil ...