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ANCILLA GAINER v. WILLIAM JONES (10/11/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 11, 1985.

ANCILLA GAINER
v.
WILLIAM JONES, APPELLANT

Appeal from the Order of the Court of Common Pleas, Family Division, of Philadelphia County at No. 82-13970.

COUNSEL

Allen L. Feingold, Philadelphia, for appellant.

Robert Taylor, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montemuro, Popovich and Watkins, JJ.

Author: Popovich

[ 347 Pa. Super. Page 463]

This is an appeal from an order of the trial court which adjudged paternity and awarded appellee, the mother, child support in the amount of twenty-five dollars ($25.00) per week plus ten dollars ($10.00) in arrearages. We affirm.

The facts are as follows:

On May 2, 1983, the instant case was listed, and the trial court ordered blood tests to be conducted.

On February 29, 1984, the case was listed again; however, the trial court concluded that the case was listed in error because no complaint for support had been filed.

A complaint for support was filed eventually on March 14, 1984 on behalf of appellee, Ancilla Gainer, and against the putative father, appellant, William Jones. A hearing was held at which time appellant was adjudged to be the father of the minor child, Stacey, who was born on October 29, 1982. A "PETITION FOR RECONSIDERATION" was filed, and this appeal followed.

Appellant raises the following issues: (1) whether the trial court abused its discretion in admitting into evidence the results of an HLA blood test because (a) no expert testimony was presented to interpret the findings; (b) the appellant was denied the opportunity to cross-examine the expert examiner; (c) no foundation was laid for the admission of the expert report; and (d) the trial court was without jurisdiction to order the blood tests.

Appellant also argues that the trial court's order adjudging paternity and awarding support was in error because it contained serious procedural defects which denied appellant due process of law.

[ 347 Pa. Super. Page 464]

At the outset, we must resolve the question of jurisdiction. According to appellant, the trial court "never had subject matter jurisdiction or the jurisdiction to order the parties to submit to said blood studies." Appellant's Brief at 12. Appellant's contention is based on the fact that no complaint in support had been filed on May 2, 1983, when the trial court ordered the blood tests. This procedural irregularity, however, is not fatal in the instant case.

The jurisdiction of the Courts of Common Pleas of this Commonwealth has been set forth in the following manner:

Article 5, § 5 of the Pennsylvania Constitution provides that the court of common pleas shall have "unlimited original jurisdiction in all cases except as may otherwise be provided by law." The constitutional provision was implemented by the General Assembly of Pennsylvania when § 931 of the "Judicial Code" was enacted. 42 Pa.C.S.A. § 931. The legislature provided that the courts of common pleas of the Commonwealth "shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas." [emphasis supplied.] The jurisdiction of the common pleas courts established therein is exclusive.

Martino v. Transport Workers Union, Etc., 301 Pa. Super. 161, 174, 447 A.2d 292, 299 (1982).

Additionally, our Court has said:

The test to be applied in deciding whether subject matter jurisdiction exists was also set forth in Witney v. Lebanon City, 369 Pa. [308] at 312, 85 A.2d 106, where Justice Stern said:

"We there pointed out that the test of jurisdiction was the competency of the court to determine controversies of the general class to which the case presented for its consideration belonged, -- whether the court had power to enter upon the inquiry, not whether it might ultimately decide that it was unable to grant the relief sought in the particular case. . . ."

[ 347 Pa. Super. Page 465]

    v. Transport Workers Union, Etc., supra, 301 Pa. Superior Ct. at 174-76, 447 A.2d at 299.

Appellant has failed to cite a statute in support of his contention, and our research has failed to disclose one. The trial court had the authority to decide the general claim of paternity, and the fact that a formal complaint in support was not filed until later fails to show that the court was without jurisdiction to entertain the matter, particularly when the procedural defect was cured.*fn1

Appellant raises a number of other issues. However, the resolution of those issues depend upon whether appellant has preserved them for appellate review by the timely filing of post-trial motions. Pa.R.C.P. 227(b)(1)(2) and (c). In the instant case, a decision was made by the trial court on September 4, 1984 after a hearing. Appellant's "PETITION FOR RECONSIDERATION" was filed on September 24, 1984. Even if we give credit to appellant's argument that, because the support hearing immediately followed the paternity hearing, he was unable to file post-trial motions at that time, appellant could have filed and did file post-trial motions after September 4, 1984, which was the date of the court's decision.*fn2 In fact, the record shows that the trial

[ 347 Pa. Super. Page 467]

    court requested the attorneys for both parties to "take five minutes together in the counsel room outside the courtroom and try to work out something in this case before we proceed" on the support matter. N.T. 9/4/84 at 19. Thus, appellant did have an opportunity to file post-trial motions. See Pa.R.C.P. 1910.5 commentary. ("In certain cases, where the parties are in court when paternity is adjudicated and the evidence is ready, a hearing may be immediately held and a final support order entered.") However, because appellant's motion for post-trial relief was filed more than ten (10) days after the decision was made, appellant's claims have not been preserved for review.

Order is affirmed.

Disposition

Order is affirmed.


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