*1 ment); Disciplinary Counsel Ewing, 496 Office of 436 A.2d (commingling entrusted funds with personal funds and misrepresentations material war- disbarment); rants Disciplinary Counsel v. Lew- Office of is, supra, (commingling and converting funds, of client misrepresenting that certain had expenses been paid war- disbarment). rants accept
We Disciplinary recommendation of the Board and the Respondent is herewith disbarred from the practice subject Further, law in court supervision. to our Respondent to pay ordered the costs of investigation and prosecution in this matter. MINNICH, Appellant,
Jean Marie Gregory RIVERA, Appellee. L. Pennsylvania. Court of
Argued Oct. 1985. Decided March *2 Barton, Mary Louise appellant. Asst. Dist. for Atty., Lancaster, William Campbell, appellee. W. for NIX, C.J., LARSEN, FLAHERTY, Before McDER MOTT, HUTCHINSON, PAPADAKOS, ZAPPALA and JJ. THE COURT
OPINION OF LARSEN, Justice. the eviden- appeal in this is whether presented
The issue trial, proof by preponderance standard in a tiary statute, 42 evidence, Pa.C.S.A. prescribed by as the 14th 6704(d), clause of process violates the due Constitution. Amendment of the United States as amended P.L. No. April The Act of as further 5, 1980, P.L. No. by the Act October 1982, P.L. No. of December the Act by amended pro criminal 326, 42 6704 abolished Pa.C.S.A. § proof beyond ceedings evidentiary mandated that legislature Instead reasonable doubt.1 by criminal paternity was procedure Previously, to establish pros- proceeding bastardy prosecution. In such a the trial of paternity shall be a civil action with lessened generally applicable to civil trials — aby 6704(d) of the evidence. pro- Section vides:
Trial Paternity paternity of a child born —Where disputed, out of wedlock is the determination of paternity shall be made the court without a jury unless either party trial, demands trial jury. whether or not a demanded, by jury trial shall abe civil trial and there right shall be no to a criminal trial on the issue of paternity. The burden proof shall be aby preponder- (Emphasis ance supplied). evidence. 6704(d). Pa.C.S.A. § May appellant, Minnich, On Jean Marie gave baby boy, Cory birth to a Michael Minnich. Approximately *3 later, three on appellant weeks June filed a com- in plaint the domestic relations division of the Common County seeking support Pleas Court of Lancaster for her Rivera, son from the appellee, Gregory alleged L. to be the father of the infant. newly Appellee paternity born denied and a trial on that issue held a jury April was before on in jury appellant returned a verdict favor of and the against appellee finding appellee, Gregory that L. Riv- era, the of Cory was father Michael Minnich. trial, the appellee
Prior to the start of the
the
moved
as set forth in
Pa.C.S.A.
proof
court that the burden of
6704(d) proof
preponderance
of the evidence—of-
§
—
to the
process
fends the due
clause of the 14th Amendment
pro-
that due
Appellee argued
United States Constitution.2
alleged
upon
complaint
ecuted the
father
the
of the mother. The
beyond
prove
Commonwealth's burden was
a reasonable doubt an
prosecutrix-mother
act of intercourse between the
and the
lather,
conception
a child as a
of that
See
result
act.
Rankin,
Pa.Super.
A.2d 660
brief,
although
appellee,
2. The lower court noted that
the
in his
raised
Constitution,
process
Pennsylvania
argu-
a due
issue under the
in his
appeared
rely exclusively
ment he
the
on
Federal Constitution.
in
cases be
proof
paternity
that the burden of
requires
cess
requested
He
that
convincing
clear and
evidence.
proof by
appellee’s
denied
charged.
judge
so
The trial
jury
the
charge
heightened
refused to
on the
burden
motion and
in accordance with 42
The court instructed the
proof.
jury
6704(d)
establishing
that
the
Pa.C.S.A.
burden
§
of the evidence.
proof by
preponderance
paternity
him,
Following
against
appellee
post-
filed
verdict
court had erred
arguing
trial motions
the trial
stan-
impose
convincing
the clear and
evidence
refusing
on
charging
jury
dard to the issue of
and
standard.
The lower court
reversed
holding
process requires
that due
itself
in a
case be
clear and
evi-
6704(d) requiring
The court held that 42 Pa.C.S.A.
dence.
of the evidence is unconstitu-
only proof by preponderance
lower court’s
and ordered a new trial. From the
tional
order, this
holding
appeal
followed.3
issue
of the
outset,
begin our consideration
we
At the
of the
that enactments
strong presumption
here with
challenges
he
who
are constitutional
legislature
heavy
carries a
assembly
an act of
constitutionality
14th Amendment.
Hence,
on the
focused
court’s decision
the lower
Court,
a claim under
appellee’s
raises
brief
Similarly,
in this
arguments
I,
but the
Pennsylvania Constitution
1 of the
Section
Article
Accordingly,
Constitution.
on the Federal
parties concentrate
both
requirements.
analysis
Amendment
on 14th
our
we have focused
process
Nevertheless,
applicable to due
say
equally
here is
what we
*4
Pennsylvania Constitution.
concerns of
722(7)
42 Pa.C.S.A.
appeal
this court under
to
This is a direct
provides:
which
appeals
jurisdiction of
shall have exclusive
Court
following
pleas in the
courts of common
final orders of the
from
of cases:
classes
invalid as
pleas had held
common
where the court of
Matters
States,
Constitution,
of the United
treaties or laws
repugnant
to the
Commonwealth, any treaty
of
or law
of this
or to the Consitution
of,
any
or of
any provision of the Constitution
States or
the United
Commonwealth,
of,
home rule
any provision of
or
this
statute
charter.
Mikulan, 504 Pa.
proof.
Thornburgh,
Snider v.
496 Pa.
(1983).
Preserves v. Com-
Wood
National
(1981).
A.2d 593
monwealth, 489 Pa.
(1980).
“It is an occasions, on numerous has affirmed this Court which unless not declared unconstitutional may Act that ‘an plainly.and clearly, palpably, constitution it violates in our no doubt or hesitation as to leave such manner ” omitted) (citation minds.’ Case No. Absentee Ballots 165, 169, 431 Pa. (1968). 6704(d)— here —42 question The statute Pa.C.S.A. § proceedings op- trials be civil as mandates that criminal, and the burden of be the standard posed preponderance usually applied to civil trials — legislature of the province the evidence. It is within particular ac- prescribe proof applicable a standard announced proceedings long tions and so as the standard See: Common- process requirements. minimum due meets wealth v. Wright, declaring
appellant argues
that
the lower court erred
set
legislature
standard
was,
process requirements
failed to meet minimum due
therefore,
agree
appellant
unconstitutional. We
with
err and
reverse.
the lower court did
now
concept
as that
proof,
The function
aof
in the realm of
Process Clause and
in the Due
embodied
concerning the
the factfinder
is to “instruct
factfinding,
have in
thinks he should
society
confidence our
degree of
particular
for a
factual conclusions
correctness
Winship,
In re
397 U.S.
adjudication.”
type
J.,
(1970) (Harlan,
L.Ed.2d 368
risk of
to allocate the
The standard serves
concurring).
*5
the relative
indicate
and to
litigants
error between
decision.
the ultimate
to
attached
importance
(con-
Wright,
Larsen,
majority joins),
in
J.
which
curring opinion by
Texas,
Addington v.
99 S.Ct.
441 U.S.
citing
(1979).
1808,
In (1) trials, appraise us to: upon it is incumbent along the father with alleged to be individual interest mother; (2) assess the of the child the interests in in matters and establish- family interest Commonwealth’s proof; particular under a ing paternity erroneously may those interests be the risk that consider Mathews v. See applied. of the standard deprived because (1976). Eldridge, 893, 47 L.Ed.2d U.S. Kramer, Stantosky 745, 102 Also see S.Ct. 71 L.Ed.2d interest legitimate has a alleged to be father person in he had no hand father of a child being declared the not him that he not important into the It is
bringing world. financial assist- and direct provide support required concern on legitimate There is a one not his child. ance to legal his heir declared having stranger not part his with alia, interests, inter stranger potential thereby giving He has an estate,4 Benefits.5 Security and Social in his health, welfare and for the being responsible interest in not of a child not his own. education hand, an wedlock, the other has out of on The child born having parents two knowing his father and interest include a him. The child’s concerns care for provide and knowl- line of descent with to a certain belonging known Code, Probate, et § 20 Pa.C.S.A. and Fiduciaries Estates 4. See seq. U.S.C. 402. 5. See 42
edge
benefits or detriments
inheritable from that
Further,
line.
the child is entitled to financial assistance
.
provide
from each
to
such
parent
support.
able
in receiving
mother has an interest
from the child’s
otherwise,
in raising
financial and
and
help,
natural
father
has an
caring for
the child born out
wedlock.
She
in
her child has
seeing
responsible parents.
interest
two
has an interest
in its infant citizens
The Commonwealth
care for
There is
provide
and
them.
having
parents
two
furnishing
interest
in not
financial assistance
legitimate
a
capable
support.
have a father
for children who
having
a father
responsible
is concerned
only
This not
tends to
for a child born out of wedlock.
children,
by keeping minor
who
reduce the welfare burden
rolls,
off the
it also
financially
parent,
but
have a
able
potential
father
from whom
recov-
an identifiable
provides
payments
paid
which are
may be had of welfare
ery
out of wedlock.
support
the child born
interests of the
Considering
respective
parties,
of the evidence which
proof by
requires
litigants
“roughly
to share the risk
error
Texas,
Addington
supra
v.
423,
fashion,”
at
equal
U.S.
1808,
requirements
at
satisfies the minimum
of due
S.Ct.
case,
alleged
In
father has had
process.
typical
mother and it is the mother’s
sexual
relations with the
in conception
contention that
those relations resulted
and
child. The
father denies
the birth of a
The trial must
and demands a trial to determine
issue.
fair, and to that end the Commonwealth
procedurally
indigent putative
fathers with blood tests
provide
must
Streater, charge, Little v.
U.S.
S.Ct.
without
alleged
fathers who are
In those where nature, they regarded Pennsylvania, civil as are is that the general rule See Am of the evidence. Jur 2nd 922 and
preponderance
C.J.S.,
A
of the courts
majority
Bastards
which
evidence issue
the “civil
quantum
have considered
stan
jurisdictions,
trial”
have affirmed
McFadden v.
Griffith,
See
Ark.
dard.
647 S.W.2d
Palma,
Walsh v.
(1983);
Cal.App.3d
201 Cal.
Andrews,
Terrasi
(1984);
Conn.Cir.Ct.
Rptr.
Azzarello,
Ex
Cizek v.
People
Rel.
(1965);
A.2d 75
Spears
1177;
Ill.App.3d
37 Ill.Dec.
401 N.E.2d
(1948); Dorsey
Veasley,
239 Iowa
NIX, C.J., filed a dissenting opinion.
NIX, Justice, Chief dissenting.
Notwithstanding the heavy proof burden of demanded to sustain a challenge constitutional to an act of the General Assembly, it my is considered opinion that the trial court was correct in concluding that due process requires that paternity be by established clear and convincing evidence. The preponderance specified standard 6704(g) section Code, the Judicial 42 Pa.C.S. 6704(g), is therefore uncon- stitutional. “
The function of a
‘to instruct the
factfinder concerning
degree
of confidence our society
thinks he should
have
correctness
factual conclu-
”
particular
sions for a
type
adjudication.’
Addington v.
Texas,
1804, 1808,
99 S.Ct.
L.Ed.2d
quoting
Winship,
In re
397 U.S.
(1970) (Harlan, J.,
[Fjirst, the private interest that will be affected action; second, official the risk of an depriva- erroneous tion of such interest through procedures used, value, probable if any, of additional or substitute
procedural safeguards; finally, Government’s interest, including the function involved and the fiscal and that the additional or administrative burdens substitute procedural requirement would entail.
Mathews v.
U.S.
335 96 S.Ct.
Eldridge,
(1976) (citation omitted).
Apart
obligation and
in-
avoiding
support
liberty
a substantial
for
possible
noncompli-
terest threatened
sanctions
ance,
parent-child relationship.
at
is the creation of a
issue
frequently
importance
This Court
has stressed
bonds,
legitimized by marriage,
or not
familial
whether
protection.
Stanley
and accorded them constitutional
See
645, 651-652, L.Ed.2d
Illinois, 405
S.Ct.
US
as the termination of such
Just
[1212-1213]
fairness,
v. De-
procedural
demands
see Lassiter
bonds
Services,
18, 68
post,
p.
partment
Social
U.S.]
[452
so too does their
L.Ed.2d
599 of questionable reliability availability eyewitness- See, Streater, 14, unlikely. e.g., supra es is Little v. at 101 S.Ct. at 2209. government’s considered is the
The final factor to be selected. The state be interest father in a of the child and the shares the interest Streater, Little v. and accurate determination. See just 14, 2209; Department 101 at Lassiter v. supra at S.Ct. 2159, 2153, Services, 452 Social Moreover, of more (1981). imposition L.Ed.2d 640 time or entails no additional stringent standard expense government. to the
From the foregoing it is clear that
prepon-
the use of the
derance
in paternity
standard
proceedings does not satisfy
requirements
of due process.
stan-
dard is the least demanding standard known to the law.
Ehredt,
191,
Pa.
(1979);
(1977); 45, Se-Ling Inc. v. Hosiery, Margulies, Pa. (1950). A.2d 854 To satisfy party bearing that standard the the burden need only present outweighs evidence which opposing in probative evidence value. Se-Ling Hosiery, Inc. v. In Margulies, supra. contrast a “clear and convinc- ing evidence” standard that requires credible, witnesses must found to be that the
[T]he they testify facts to which are distinctly remembered and order, exactly the details thereof narrated and due and clear, direct, testimony their is so weighty, convincing as to to come to a jury enable clear conviction, hesitancy, precise without of the truth of the issue____ facts in It is not necessary the evidence ..., provided be uncontradicted it “carries a clear convic- tion to the mind” ... or carries “a clear conviction of its truth.....” Fickert, re Estate
In Pa. 337 A.2d Trust, La quoting Rocca (1963). Seaman, See also Thomas Pa. Co.,
(1973); Broida Travelers Insurance A. 492 required “clear standard evidence” claims in civil prove types number Pennsylvania *11 See, Butler, Butler e.g., 522, v. 347 A.2d Pa.
actions.
(facts
(1975)
presumption
to overcome
necessary
Clawson,
gift); Elliott v.
34,
(1964)
416 Pa.