Corra v. Coll

• Decision Date: 01 October 1982
• Citation: 305 Pa.Super. 179,451 A.2d 480
• Parties: Cleoria CORRA, v. Raymond COLL, Jr., Appellant.
• Court: Pennsylvania Superior Court

Page 480

451 A.2d 480

305 Pa.Super. 179

Cleoria CORRA, v. Raymond COLL, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Dec. 2, 1980.

Filed Oct. 1, 1982.

F. Charles Petrillo, Wilkes-Barre, for appellant.

Jonathan Blum, Asst. Public Defender, Wilkes-Barre, for appellee.

Chester B. Muroski, Dist. Atty., Wilkes-Barre, for participating party.

Before HESTER, CAVANAUGH and VAN der VOORT, JJ.

CAVANAUGH, Judge:

In this appeal we are asked to decide whether indigent defendants in civil paternity actions have a constitutional due process right to appointed counsel.

On October 5, 1978, appellee, Cleoria Corra, filed a complaint ¹ in the Court of Common Pleas of Luzerne County seeking support for Lawrence Paul Corra from appellant, Raymond Coll, Jr., the alleged father of her son. On February 13, 1979, appellant, represented by Legal Services of Northeastern Pennsylvania for the limited purpose of pursuing appellant's request for counsel, ² filed a motion for the appointment of a Public Defender. In support thereof, appellant filed an affidavit of indigency ³ and also a Statement of Defense indicating that he planned to deny paternity and required legal representation. Trial was delayed pending resolution of appellant's motion and, on August 2, 1979, the Luzerne County Court of Common Pleas en banc denied appellant's request for a Public Defender. In a per curiam order of February 14, 1980, this Court granted appellant's petition for interlocutory review by permission. Hence this appeal. ⁴ For the following reasons, we reverse.

The Fourteenth Amendment to the United States Constitution provides, in part, that "No state shall... deprive any person of life, liberty, or property, without due process of law." ⁵ Due Process is a concept incapable of exact definition. Rather it is a flexible notion which calls for such procedural safeguards as a particular situation demands to ensure fundamental fairness to a potentially aggrieved litigant. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494 (1972); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1951). In Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L.Ed.2d 113, 118 (1971), the Supreme Court held that "due process requires, at a minimum, that absent a countervailing state interest of overriding significance, persons forced to settle their claims of right and duty through the judicial process must be given a meaningful opportunity to be heard."

This is a case of first impression in this Commonwealth and we, therefore, are without decisional or statutory guidance in determining whether indigent defendants have a due process right to court-appointed counsel in civil paternity actions. It is clear, however, that a resolution of this question cannot be reached by applying a wooden civil/criminal distinction. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile delinquency proceedings). That approach has long since been abandoned in favor of emphasis on the nature of the threatened deprivation. See In re Hutchinson, 279 Pa.Super. 401, 421 A.2d 261 (1980) (allocatur granted) (civil commitment hearings). As Judge Hoffman commented in Commonwealth ex rel. Finken v. Roop, 234 Pa.Super. 155, 171-172, 339 A.2d 764, 772-773 (1975), cert. denied and appeal dismissed, 424 U.S. 960, 96 S.Ct. 1452, 47 L.Ed.2d 728 (1976): "Euphemistic terminology is not determinative of the application of the Due Process Clause... We must consider the reality of the lower court's commitment order. The serious deprivation of liberty and the unfortunate stigma which follow involuntary commitment render the distinction between 'criminal' and 'civil' proceedings meaningless." Recently summarizing the decisional law on the right of indigents to appointed counsel, the Supreme Court in Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S.Ct. 2153, 2159, 68 L.Ed.2d 640, 649, rehearing denied, 453 U.S. 927, 102 S.Ct. 889, 69 L.Ed.2d 1023 (1981), noted:

In sum, the Court's precedents speak with one voice about what "fundamental fairness" has meant when the Court has considered the right to appointed counsel; and we thus draw from them the presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. It is against this presumption that all the other elements in the due process decision must be measured.

In Lassiter, the Court considered the inverse of the problem presented by the instant appeal: whether indigent parents in every parental termination proceeding have a due process right to court-appointed counsel. In upholding the decision of the North Carolina Court of Appeals that they do not, the Court weighed the presumption of the right to counsel in situations potentially involving the deprivation of liberty against three due process factors enunciated in the case of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976):

first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The Mathews v. Eldridge balancing test was also employed by the Supreme Court in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) wherein it was held that the failure to provide a blood grouping test for indigent defendants in paternity actions violated due process.

Three recent decisions in similar right-to-counsel actions, rendered subsequent to Lassiter and Little, and using the Mathews v. Eldridge test, provide support for the viewpoint that counsel is not constitutionally required. In Nordgren v. Mitchell, 524 F.Supp. 242 (D.C.Utah 1981), the U.S. District Court declined to adopt a blanket due process ruling requiring the appointment of counsel for indigent defendants in paternity actions. Instead, it held that the decision should be vested in the state trial court, subject to appeal, on a case-by-case basis. A similar conclusion was reached by the Supreme Court of North Carolina in Wake County ex rel. Carrington v. Townes, 53 N.C.App. 649, 281 S.E.2d 765 (1981), rev'd, 306 N.C. 333, 293 S.E.2d 95 (1982). Finally, in State ex rel. Adult and Family Services v. Stoutt, 57 Or.App. 303, 644 P.2d 1132 (1982), the Oregon Court of Appeals concluded that federal and state due process were not violated by the lower court's refusal to appoint counsel for an indigent defendant in a state-initiated paternity action. Employing an after-the-fact analysis of the record, the Court found that an attorney could have had little effect on the result reached in that proceeding. The Court specifically declined to decide whether due process ever requires the appointment of counsel in Oregon filiation proceedings. Id., 644 P.2d at 1137 n. 7.

We have carefully reviewed those opinions and are nonetheless convinced that an evaluation of the Mathews v. Eldridge factors support the conclusion that denial of counsel for indigent defendants in civil paternity actions in Pennsylvania is inconsistent with due process.

Before applying those factors to the case sub judice, we first address the argument, raised by the Public Defender, that, since an adjudication of paternity cannot directly result in the deprivation of physical liberty, there can be no presumed right to counsel. As we have noted, the civil/criminal distinction is unavailing in determining whether counsel is constitutionally required. Thus it is of no moment that paternity actions, once governed by criminal statutes, are now civil in nature. ⁶ See generally, Williams v. Wolfe, 297 Pa.Super. 270, 443 A.2d 831 (1982). This jurisdiction does not make criminal, and hence punishable by incarceration, the fathering of a bastard child. Commonwealth v. Strunk, 256 Pa.Super. 213, 219, 389 A.2d 1089, 1092 (1978) (dissenting opinion by Cercone, J.). An adjudication of paternity may, however, result in the future loss of physical liberty. Once paternity has been established, and a support order entered, a defendant who willfully fails to comply with said order when he has the financial ability to do so shall be guilty of a summary offense punishable by up to ninety days imprisonment. 18 Pa.C.S.A. § 4324. We cannot agree with the Public Defender's position that this threatened deprivation of liberty is too remote to justify the appointment of counsel at the hearing at which paternity is established. But see Wake County ex rel. Carrington v. Townes, supra; Sheppard v. Mack, 68 Ohio App.2d 95, 427 N.E.2d 522 (1980).

A contrary result is not mandated by either Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979), involving the Sixth Amendment right to counsel in criminal cases where imprisonment is not actually imposed, or Lassiter, supra. Proceedings to extinguish parental rights do not commonly raise the spectre of a loss of physical freedom; ⁷ on the other hand, paternity actions, the object of which is to establish liability for support of an illegitmate child, always raise the potentiality of such loss. Due Process is, as we have said, a flexible concept the application of which varies according to the particular situation involved. It is our belief that the creation of a parent-child relationship is an example of the type of situation which demands a flexible application of due process. Accordingly, we analyze the due process requirements of Mathews v. Eldridge against a strong presumption that court-appointed counsel is constitutionally required for indigent defendants in a paternity proceeding.

The first factor--the private interests...