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LOIS BOHN v. THOMAS LUNGER (02/15/85)

filed: February 15, 1985.

LOIS BOHN, APPELLEE,
v.
THOMAS LUNGER, APPELLANT



No. 237 Pittsburgh, 1983, Appeal from the Order entered in the Court of Common Pleas, Family Division, of Allegheny County, No. FD 81-10119.

COUNSEL

Albert C. Odermatt, Jr., Pittsburgh, for appellant.

Ronald L. Muha, Pittsburgh, for appellee.

Rowley, Johnson and Hester, JJ.

Author: Rowley

[ 340 Pa. Super. Page 371]

OPINION OF THE COURT

Thomas Lunger appeals from the trial court's Order dismissing exceptions to the recommendation of the hearing officer and directing that he pay child support for his minor daughter, Christy Bohn. Appellant argues that he is entitled to a new trial on the issue of paternity. We affirm the trial court's Order.

This action commenced when Lois Bohn, appellee, filed a complaint against appellant on July 23, 1981 seeking support for her minor child. Blood tests were administered shortly thereafter and they indicated a 97.4% probability that appellant was the father of appellee's child. Nonetheless, appellant continued to deny paternity and the case

[ 340 Pa. Super. Page 372]

    was listed for a trial by jury. The jury returned a verdict in favor of appellee on June 1, 1982. Appellant's trial counsel did not file post-trial motions and appellant retained new counsel.

On June 24, 1982, appellant's new counsel filed a Petition for Leave to File Post-Trial Motions Nunc Pro Tunc. The petition was granted. On July 6, 1982, appellant's counsel filed a motion for new trial alleging numerous errors by the trial court and on November 11, 1982, a supplemental motion was filed alleging ineffectiveness of appellant's trial counsel. On November 22, 1982, upon consideration of the briefs of counsel and oral argument, the court en banc denied appellant's motion for a new trial and ordered that a hearing regarding support be held.

Following the support hearing, the hearing officer recommended: 1) that appellant pay $130.00 per month for the support of Christy Bohn; 2) that arrears be set at $2,210.00 to be paid at a rate of $25.00 per month; and 3) that appellant pay expert witness fees and blood test costs totaling $1,100.00. Appellant's timely exceptions were dismissed and the hearing officer's recommendation was entered as an Order of court on January 28, 1983. This appeal followed. Appellant does not challenge the support award, but rather claims that the trial court erred in refusing to grant him a new trial.

Appellant first argues that the trial court erred in refusing to allow appellant's witness, Dr. Perer, to testify regarding an examination of appellant performed four months after the birth of Christy Bohn, which indicated that appellant was aspermatic. We have considered appellant's claim and find that the trial court's opinion thoroughly and properly resolves this issue and we need add nothing further.

Appellant next argues that the trial court erred in refusing to grant him a new trial on the ground of ineffectiveness of his trial counsel. It is now clear that an appellant may raise the issue of ineffective assistance of

[ 340 Pa. Super. Page 373]

    counsel in a proceeding involving an adjudication of paternity.

Our court has determined that due process entitles an indigent defendant to appointment of counsel in a paternity action despite the civil nature of such proceedings. Corra v. Coll, 305 Pa. Super. 179, 451 A.2d 480 (1982). We have also stated that a non-indigent defendant in a paternity action must be granted a reasonable opportunity to secure counsel. White v. Gordon, 314 Pa. Super. 185, 460 A.2d 828 (1983).

In a recent opinion regarding the right to counsel in paternity actions, this court held that a defendant's due process right to counsel entitles the defendant to effective assistance of counsel. Banks v. Randle, 337 Pa. Super. 197, 486 A.2d 974 (1984). In Banks, a jury trial was held on the issue of paternity at which defendant's counsel was present but defendant was not. The jury's verdict was in favor of the mother and defendant's trial counsel did not file post-trial motions. Defendant then obtained new counsel, who filed a petition for leave to file a motion for new trial nunc pro tunc on the ground of trial counsel's ineffectiveness. The petition was dismissed without hearing. A support hearing was subsequently held resulting in a support order against the defendant.

On appeal in Banks, the defendant argued that the trial court erred in refusing to grant his motion for a new trial nunc pro tunc. After reviewing the principles and decisional law governing the right to counsel in paternity actions, our court concluded:

Given the recognition of the right to counsel for paternity defendants in Corra v. Coll, supra and White v. Gordon, supra, we find it impossible to deny such a defendant the right to effective assistance of counsel. It is axiomatic that the right to the assistance of counsel means the right to the effective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d ...


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