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submitted: July 11, 1988.


Appeal from the Order in the Court of Common Pleas of Allegheny County, Civil Division, No. GD 8513835


Anthony May, appellant, in propria persona.

Thomas R. Ceraso, Greensburg, for appellees.

Tamilia, Montgomery and Hoffman, JJ.

Author: Tamilia

[ 377 Pa. Super. Page 263]

Appellant Anthony May brings this pro se appeal from an Order dated January 25, 1988 which denied his request for appointment of counsel. The facts and procedural history surrounding the appeal are as follows.

On August 8, 1985, appellant, who had been incarcerated on a criminal conviction, brought a civil action against counsel who represented him at trial, alleging she had been negligent and had committed legal malpractice in handling his case; consequently, he sought monetary damages from her. By an October 4, 1985 Order, he was permitted to proceed in his case without payment of costs or fees, and his complaint was reinstated and served on appellee-attorney. Default judgment was taken by appellant on December 3, 1985, when the attorney had failed to file an answer to the complaint. The appellee-attorney did, however, file an answer and new matter on July 20, 1987. This pleading was later stricken as untimely filed by an October 5, 1987 Order. On January 5, 1988, appellant filed a motion seeking appointment of counsel, based upon the interests of justice, and due to the extraordinary circumstances and posture of this case. The trial court then entered the Order in question which denied the request for appointment of counsel.

[ 377 Pa. Super. Page 264]

On appeal, appellant urges the court abused its discretion in refusing to appoint counsel, in light of the exceptional circumstances of this case. He argues there exists, under 42 Pa.C.S. ยง 2501(b), a "right to be heard" in court, and his right to have counsel appointed is relative to that section.*fn1

Appellant states, "the proper presentation of evidence, the equitable realities as coupled with the lower courts [sic] obviously strained legal resources, and any prejudice to the Appellant would better be served and avoided with experienced and able counsel assisting in having this three (3) year old action properly adjudicated." Appellant's brief at p. 3. Moreover, he contends the court denied appellant due process of law by its "failure to appoint counsel to allow for the adjudication of the assessment at trial of damages." Appellant's brief at p. 4.

We have reviewed appellant's claims; however, we find them to be without merit. The sixth amendment of the United States Constitution guarantees the accused in all criminal prosecutions the assistance of counsel for his defense. U.S.Const. Amend. VI.*fn2 "The triggering event for sixth amendment rights to attach is the commencement of adversary judicial proceedings against the defendant." Commonwealth v. Karash, 513 Pa. 6, 12-13, 518 A.2d 537, 541 (1986); see cases cited therein. The sixth amendment does not afford such assistance of counsel to a plaintiff in a civil action, such as the appellant's action, where no loss of liberty is involved.

[ 377 Pa. Super. Page 265]

While it is true that in some instances counsel will be appointed for a plaintiff in a civil action, generally it is a situation involving broad policy considerations implicating a state interest of a civil rights nature such as a fair housing violation, sexual or other job discrimination or where liberty interests are implicated. The state has reasonably adjusted to these necessities by providing legal agencies to fulfill due process requirements, which will assist indigent persons who are wronged, or the courts have called upon pro bono services of the bar associations absent public resources. Each class of case and in some respects each case is scrutinized to determine if the right to counsel is required under the due process provisions of federal and state constitutions. The requirements are more clearly stated and more generally applicable when a party is a defendant in certain civil actions, rather than a plaintiff. It is also clear that classification of a case as civil as opposed to criminal will not be determinative, but rather, whether the action will be perceived as ultimately depriving a person of a higher liberty interests. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile defendant in a delinquency hearing entitled to counsel). In Commonwealth ex rel. Finken v. Roop, 234 Pa. Super. 155, 339 A.2d 764 (1975) cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976) counsel was required in civil commitment hearing, and in Corra v. Coll, 305 Pa. Super. 179, 451 A.2d 480 (1982), counsel was required for an indigent defendant in a paternity proceeding. However, in Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 ...

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