Rossa v. Workers' Compensation Appeal Board (City of Philadelphia)

¶ reversed; case remanded for Order

entry of an order consistent with our de- relinquished.

termination. Jurisdiction

Ashley ROSSA, through her minor ROSSA,

mother, Patricia

Petitioner, AP-

WORKERS’ COMPENSATION (CITY

PEAL BOARD OF PHIL-

ADELPHIA), Respondent. Pennsylvania.

Commonwealth Court of

Argued Oct.

March

ployer), gunshot died as result of a head, wound to the sustained in the course scope and employment. of his On March filed the fatal claim peti- Rossa daughter tion on behalf her and the matter assigned was Lundy, who placed the matter indefinite postpone- parties ment to allow the status the oppor- tunity to file a claim in the court pleas. on August requested Claimant’s counsel the case be from removed inactive status and the was assigned matter to WCJ Bachman Lundy. due to the illness of WCJ Employer’s objected counsel to the reacti- vation, objection but the and overruled additional were hearings held. Claimant testimony Rossa, Ranalli, Patricia J. Claimant’s mother, grandmother Ray- and Rossa’s Ranalli, mond Rossa’s stepfather, Louis Rossa, brother, Weir, Rossa’s and Ethel Jacobs, Mare Philadelphia, S. for peti- Rossa’s grandmother. Employer present- tioner. ed the testimony Thomas Boyle, Patrick Ball, Jonathan F. Philadelphia, for re- father, police Decedent’s who was a detec- spondent. working Employer. tive The WCJ testimony summarized the of the various PELLEGRINI, J., Before that: witnesses and found FRIEDMAN, J., NARICK, Senior Judge. ... This WCJ finds from the testi- mony of Patricia Rossa and the other BY Judge OPINION Senior NARICK.1 fact be- witnesses who testified on her (Claimant), Ashley minor, Rossa ap- half, L. Ashley daugh- Rossa is the peals from an of the Decedent, ter of Boyle. Daniel This (Board) Compensation Appeal Board testimony WCJ finds [Rossa’s] credible reversed the of a decision Workers’ Com- during the period she and Decedent (WCJ) pensation Judge granted dated, they had sexual This relations. claim petition fatal filed on Claimant’s be- testimony WCJ finds [Rossa’s] credible (Rossa), half Patricia Rossa Claimant’s that she dated Decedent until up March mother, and from arising the death of 17, 1990. This WCJ finds tes- [Rossa’s] (Decedent). Boyle Daniel R. We reverse. timony and convincing credible that dur- 6, 1991, Decedent, February police ing On the period she and Decendent (Em- relations, City Philadelphia dating officer for the engaging sexual originally argued untimely Judge 1. This case was cause before of the death of Senior panel consisting Judge Pellegrini, Rodgers, Judge the case was submitted to Senior Judge Rodgers. Judge Friedman and panel. Senior Be- Narick as a member of the Al- modify remand. its order as did not date other men. This [Rossa] grant- consistency though petition testi- [Rossa’s] WCJ finds the Claimant’s fact mony ed, and the wit- not reach a different Board did actions jurisdictional on her behalf is- concerning nesses conclusion under- fact witnesses [Rossa] the Board determined sue. Rather took in their that Decedent was belief that Em- correctly argued and Claimant matter, specifically in the father this request not contest Claimant’s ployer did April contacting Decedent [Rossa] as dependency eliminate an issue informing pregnancy; him of the Thus, prior its the Board modified case. Raymond engaging Ranalli discussion order deleting of its re- portion Patri- regarding support; with Decedent manding the matter to WCJ.2 Decedent cia Ranalli’s contacts with the Court,3 appeals now Claimant pregnancy and the during Ms. Rossa’s our review: following raises the issues for telephone Decedent on the contact with (1) had whether the WCJ birth, day Ashley and [Ros- Rossa’s was entitled determine whether Claimant Decedent, naming Ashley upon sa’s] under 307 of Work- to benefits Section birth, Birth, Rossa’s on the Certificate of (2) (Act),4 whether Compensation ers’ Act same Birth Certificate filed before Dan- supports the WCJ’s substantial evidence Boyle’s iel death. daugh- is Decedent’s finding that Claimant (WCJ’s decision, 7). rejected p. The WCJ (3) Claimant had estab- ter and whether Sr., Boyle, of Thomas Dece- in order for Claimant to dependency lish dent’s it father the extent was inconsis- receive benefits under Section finding tent with the that Decedent was on Febru- light Act in Decedent’s death concluded, Having father. Claimant’s so 6,1991. ary granted petition. the WCJ the fatal claim argument first Claimant’s We address Board, Employer appealed to the which jurisdiction to determine that the WCJ has decision, vacated the WCJ’s based is to benefits whether Claimant entitled jur- conclusion that the did not have Act, under an issue of Section 307 paterni- isdiction to determine an issue Pennsylvania. first Claim impression ty. Board conclud- ant that workers’ argues ed that WCJ did have regarding judges have determined issues it dependency, determine issues of re- rights of entitlement benefits children’s findings manded the matter Act, children are order, under the whether the regard. Following that dated De- natural, legitimate illegiti posthumous, petition cember filed a Claimant mate, Transportation Co. v. citing rehearing, requesting that the Board Hoffer Law, § Agency 2 Pa.C.S. the order to ministrative 2. Because the Board eliminated remand, argument par- any by the Appeal issues and Compensation v. Workmen’s Russell appeal concerning America), ties to this whether the (Volkswagen 121 Pa. Board appealable not be ad- Board’s order need Cmwlth.436, (1988). 550 A.2d 1364 dressed this Court. amended, P.L. June 4.Act of compen- scope 3. Our of review in workers' and 562. section of P.S. This appeal determining sation limited to death Act who is entitled to benefits identifies committed, error con- whether an of law and, specifically, provides if there is no violated, rights or whether stitutional paid compensation is to be widow then findings necessary supported by fact are child or children. decedent’s Section of the Ad- substantial evidence. Compensation Workmen’s Appeal Jones, Board distinguishes Claimant Gainer v. Pa.Cmwlth.310, (Gaymon), Pa.Super. 443 A.2d 347 500 A.2d 1148 (1982). upon by Claimant case relied Board also asserts that a and Em- ployer, which dealt with a action judge’s jurisdiction filed in the court. The disputes includes factual issue concerning par of the court’s enthood, arose in the marriages, common law and de complaint Gainer because no in sup- pendency, citing Brandywine Paperboard had port been prior filed the trial Mills Workers’ Appeal order requiring testing. court’s blood (Zittle), (Pa.Cmwlth. Board 751 A.2d 1205 court determined that this failure to file 2000). Relying on Mohan v. Publicker In support for was not to fatal the dustries, Inc., 581, 202 Pa.Super. 198 A.2d It jurisdiction action. discussed the of the (1964), 326 Claimant also that contends court, trial indicating juris- that test of workers’ compensation judges have deter diction was competency of the court to mined the of dependents class upon based general determine controversies decedent, the date of death of a the factual class of for its consider- regarding circumstances at survivors ation, i.e., whether the court had to date of and any change death in conditions upon inquiry enter not whether it death, may after which eliminate the enti might ultimately it decide that was unable tlement of a member to a class and not grant sought. relief Claimant con- permit payment of benefits to the next nothing tends that Gainer do with a class. See also McCusker v. Workmen’s jurisdiction WCJ’s the Act under and does (Rushton Compensation Appeal Board not deal with a that separate statute Co.), Mining Pa.Cmwlth.261, 145 603 A.2d 5, from the Judicial Code. also Article See (1991), 380, 238 536 Pa. 639 A.2d 776 aff'd 5 Section of the Pa. gives Constitution that (1994) (a WCJ determines whether a wid jurisdiction the common pleas courts “ex- disqualified ow or widower is for benefits may cept provided by be otherwise being for in a relationship); meretricious law.” Mines, Bethenergy Inc. v. Workmen’s Compensation Appeal (Sadvary), Board distinguishes Claimant also two cases (a 235, (1990) 524 570 Pa. A.2d 84 upon by relied the Board involved determines whether benefits be re should attorney disputes fee in workers’ compen- instated because a meretricious relation sation cases.5 Claimant contends that the exists). ship longer no Claimant also re Pitt cases have do with nothing to a lack of lies on cases decide whether children jurisdiction in matter. Those who are actually children of the de cases were basis that decided on the attor- eligible ceased are for benefits where the neys have a lack of interest benefits in position decedent was parentis. in loco fact, granted that are under the Act. In Hertz v. Corporation Compensa Claimant contends distinction (Johnson), Appeal tion Board 724 A.2d weighs favor allowing the WCJ to (Pa.Cmwlth.1999), petition 395 allow case, make a determination in this denied, appeal ance 559 Pa. 739 this case does concern Claimant’s interest (1999). A.2d 1060 granted in benefits under the Act. denied, Larry (1993), Long, appeal Pitt 716 and Associates v. A.2d Pa. 538 648 A.2d (Pa.Cmwlth. 1998); v. (1994). 695 Pitt WCAB 792 Pa.Cmwlth.60, (McEachin), 161 636 A.2d 235

923 brief, question); decide that Car reply powered Claim Additionally, Contractors, jur Tony Hawley, numerous from other ant sites cases E. penter (1981), that have considered issue isdictions 783 281 S.E.2d N.C.App. in a compensation workers’ denied, N.C. 289 S.E.2d appeal cited following cases context. (1981) (for limited es purpose or either conclude Claimant un tablishing who is entitled to benefits compensation conclusion that workers’ statute, der the workers’ pa authority to make the commission has child the lim ternity illegitimate of an of an determination as establishing ited entitlement purpose child); v. Western illegitimate R.L.J. Sassmen benefits: Inc., Kan.App.2d Sprinklers, Or.App. 694 P.2d Corp., v. SAIF denied, 252 Kan. appeal P.2d 37 (1985) (in response argument (for (1993) of workers’ purposes only the circuit court had only, a workers’ compensation benefits the court held that a paternity, to decide reviewing compensation judge any referee had decide parentage).6 may determine claim minor child’s question concerning a compensation even workers’ benefits argues first that response, Employer of paternity by without the establishment the granted to De legislature the has not court); Commission, Rios v. Industrial (Depart Industry partment of Labor and (Com (1978) 374, 219 120 Ariz. 586 P.2d ment), Board the the or the mission has to determine determinations, make paternity whether the claimant is child of the and of The Ad citing 2208 2213 Sections of purpose determining decedent for pow set ministrative Code7 that forth compensation her entitlement workers’ Department and er invested benefits); death v. Re Bettelon Metalock compensation The De judges. workers’ Service, 448, 137 pair Mich.App. 358 generally described as partment’s power is (1984), denied, (April appeal N.W.2d 608 enforce the follows: administer and “[t]o 1985) (court 23, although held that circuit relating .... laws of this Commonwealth normally paternity decides occupation and compensation to workers’] compensation workers’ board could decide ” compensation .... and “[t]o al disease forum); Ryder in that v. the issue Brown compensa refer to [workers’ receive and Rental, 530, Truck 389 S.E.2d S.C. compensation all judges] tion claims (1990) (court that an ex held absent to receive unpaid cases and contested press statutory on the restriction broad from appeals all and refer to [Board] compensation au powers of compensation decisions [workers’ thorities, those authorities had judges] copies to mail of decisions and Lott, paternity); v. to determine Goins parties.” Section (where all affected (Ind.Ct.App.1982) 435 N.E.2d 1002 Administrative Code. of The paternity is a a determination a child’s designated power is compensation judges’ necessary incident to determine workers’ “to and such benefits, duty em- hear the board is as the Coates, Lines, 833 S.W.2d Inc. v. points cases Poole Truck 6. Claimant out that two cited 1992). (Mo.Ct.App. contrary by Employer apply that hold Act, ap- Parentage is not the Uniform which 1929, 177, Pennsylvania. April P.L. P.S. plicable Taylor See v. 7. Act of Mor- ris, (1977); §§ 568 and 573. 564 P.2d 795 Wash.2d claims for shall be support, including pa- as situations in which by him signed Secretary at ternity Relying Labor issue. on both the Industry.” of The Section 2213 Domestic Relations Rules of Code Procedure, grants Administrative Code. Because these Civil Employer contends that legislature’s The Administrative Code and place pater- intent forum, Claimant’s nity judicial reliance to Section 307 of the decisions in a not in specific Act do not administrative make references to agency forum. determinations, Employer con Additionally, Employer cites another beyond tends such determination is section of the Domestic Relations Code agency’s jurisdiction, citing inter alia legitimize serves to children out born Pennsylvania National v. Guard Work wedlock. Section 5102 the Domestic Board, men’s Compensation Appeal 63 Pa. Code, Relations 23 Pa.C.S. states Cmwlth. 437 A.2d 494 rev’d on purpose prescribing “[f]or ben- grounds, other 510 Pa. 508 A.2d 292 by, efits to children born out wedlock (1986) (administrative agency may only ex father, from through powers ercise legislature which has con shall be either mar- through determined” ferred clear and lan unmistakable riage, holding out the child is the guage). convincing fathers or “clear and evi- also contends that dence the man father child, implicate pri- may prior determinations substantial which include court de- and, therefore, require vate interests of paternity.” Employer due termination also Coll, Probate, process protections. quotes Corra 2107 of the Es- Section (1982) (in Pa.Super. 451 A.2d 480 tates and 20 Pa.C.S. Fiduciaries § support action the court held that the im- purposes pro- which for of descent of a pact determination of paternity identity on vides for the determination of the familial, liberty jus- and property interests of a father of a child out of in born wedlock right tifies the the appointment to of coun- manner in prescribed same 23 Pa.C.S. sel). Employer § also language relies on in opinion, indicating the Corra that when 5103(i) also that Employer notes Section paternity finding is established the is res Code, 23 Pa.C.S. Domestic Relations

judicata relitigated not and can be in a 5103(i), by § which was added amendment subsequent proceeding. in the fa- concerns the inclusion of Employer further relies on Section of a 4343 ther’s name on the birth certificate Code, only of the Domestic child of when both parents Relations Pa. unmarried pertinent sign voluntary in ac- C.S. which states father and mother “[wjhere that part paternity paternity of a or when knowledgment “[a] child out of disputed, agency compe- born wedlock is the de- court or administrative be by adjudication termination of shall made tent issued added.) the court in a civil action jury.” paternity.” (Emphasis without Be- that Employer Department, notes this statute confers cause the the administrative here, in agency Employer’s to the common court in not terms context, support giving specifically empowered by also the court the legislature, it parties agencies compe- submit is not one that is testing. also tent make genetic Employer cites determination Pa. R.C.P. that in provides pro- No.1910 called for this section of the Domestic cedure the parties seeking follow when Relations Code. writ, a workers’ denied points out that a WCJ

Employer also of wed- concerning children born out ge authority have the to order does not by the subse- and, therefore, legitimized that cannot make testing netic lock Al- parents. marriage as can the court their quent an accurate determination issue was pleas. Lastly, Employer dis in though Wydra of common raised, relied on held the work- Pennsylvania cusses the cases the court that Claimant, contending they inap- that are the fact ers’ none involve the issue that a posite testimony proving finder credited jur Employer also asserts that paternity. place took marriage law common involving depen cases isdiction to decide The thereby legitimated children. status, parentis loco dency, in sufficient acknowledged that since marriage law and meretricious relation find- supported these competent evidence jurisdiction on ship issues does not confer findings could not be contra- ings, these paternity. sup the WCJ to determine dispute this like the We believe vened. assertion, Hip cites port of con- type is of the at issue before us one Compensation Ap v. Workmen’s pensteel 2208 and 2213 of by Sections templated (H.M. Co.), Kelly Trucking peal Board by Em- Administrative cited Pa.Cmwlth.261, 457 A.2d a case Wydra result determined ployer. The petition court held that a which the compensation benefits un- entitlement child death benefits for a minor born out Act, encompassed der untimely. The Hippen- of wedlock was Department. authority invested in child opinion steel noted accomplish will the same The result here decedent, illegitimate daughter who purpose. obligated had pay support pursu been compen- a workers’ Hippensteel, Also ant to a court order. Based on this state upon by Employer, the sation case relied Hippensteel

ment Employer believes obli- for was no excuse its conclusion there by party case law cited either vania fifing compensation bene- untimely presently before this decided issue Furthermore, Lehigh Founda- fits. court, particularly, support where and/or tions, Inc. v. Workmen’s previously sought inheritance had not been Board, 416, 395 39 Pa.Cmwlth. Appeal sought nor be in the would future. We (1978), illegiti- court held that A.2d appreciate pleas the fact that common the same mate children were to be treated paterni generally have determined courts em- legitimate children of deceased support pur ty in the context relegate these chil- and refused to ployee recognize we poses of descent. position that would favorable dren less judges have that workers’ additional criteria. to meet require them upon make decisions often been called was not at Again variety of familial relation concerning issue, support requiring but no court order regard com ships to entitlement had been in effect either. benefits. pensation statutory no lan- recognize also Wydra cited v. Philadel- We party Neither in the Co., particular compels result guage Iron phia Reading & Coal & Rela- the Domestic (1943), matter. Both A.2d 326 alloc. Pa.Super. Probate, tions Code and the Estates and Claimant next contends that if this Court by Fiduciaries Code determines that the Employer relied WCJ has jurisdiction matter, to decide this provisions make substan that set forth the manner tial evidence was in which children born out wedlock can findings. WCJ’s Having reviewed the rec however, legitimate, be declared none of ord, we conclude that findings the WCJ’s provision restrict are supported by the requisite evidence. determine paternity solely to the common however, Employer, paterni contends that pleas court. fact Section 5103® ty must be established by clear and con above, Domestic Relations discussed evidence, vincing citing Williams Millik contemplates an agency’s administrative en, Pa.Super. 567, 506 A.2d 918 adjudication issue an of and that here the apply WCJ did not Employer nothing cites that eliminates standard. The Williams case and others Department as one of the administra- by Employer sought cases cited relief be agencies tive competent to make this de- fore a common court in the context termination. of custody or support litigation. in None request volved the for benefits under the Although Employer argues the De- Act, which applies substantial evidence partment has not specifically empow- been standard. ered to paternity by determine legisla- ture, recognize we also that no restriction Employer also contends that on the WCJ’s to make this determi- improperly WCJ relied on the birth certifi Furthermore, nation can be found. we application cate and the sup for welfare argument believe this is belied Pennsyl- port, asserting they are self-serving vania law cited above which factual documents filed Rossa. did decisions were concerning made survivors object admissibility of this evi and their relationship to the descendent at dence at the time it was submitted and can object not now admissibility. time his or her death. to its We are More over, persuaded by Employer’s argument actually reasoning contained in objection credibility weight prior these decisions and addition find evidence, which province within enlightening juris- the case from law other accept reject who is free to dictions the specific juris- where issue of it. Greenwich Collieries v. Workmen’s diction of workers’ authori- (Buck), Compensation Appeal Board ties to squarely (Pa.Cmwlth.1995). A.2d 703 We, therefore, before the courts. hold that the to determine argument Claimant’s third address paternity as it relates to entitlement to es whether dependency must be estab benefits within the workers’ lished in for be benefits to awarded. conclusion, context. This long so as it Since the class and amount of benefits are findings rests on based on substantial evi- at the established time of Decedent’s record, way dence in the in no Mohan, different death, we look to Act as it the family than relationship questions other at Although that time. the 1993 amend decided aby WCJ.8 interpreted ments have been to require recognize testing 8. We with DNA a court based on evidence similar to that may have more definitive evidence availability testing before it. this case. The DNA of However, prior testing, to the of deprive jurisdic- advent DNA alone should a WCJ of paternity trial courts arrived at decisions tion. prior to had not been established paternity children must reside with a decedent’s Hertz, death, that Decedent’s death. him her at the time of or requested case be counsel previously. Illegitimate the law Claimant’s was not even from the inactive status for even removed qualify children could benefits determined. though was never they paternity neither members of the though requested that Decedent’s fa- Rossa supported household nor the While decedent’s testing, never to DNA she (pursuant to its in- ther submit decedent. See Hoffer to un- Act, WCJ order him requested of that the terpretation of Section 807 multiple and illegitimate! dergo such a test. Rossa held that the status before family testimony solely provided members eligibility child’s benefits rested was Decedent’s years the WCJ Claimant on whether he or she was under more). father testified age daughter. without Decedent’s or full-time student hearing, re- contrary prior and to the Thus, that at time Dece- we conclude DNA establishment submit to dependency request dent fused Rossa’s died the family’s testing. Rossa and her requirement Finding was not a order for child credible, granted receive benefits. City of Phila- petition fatal claim Accordingly, the reasons stated delphia, employer, appealed Decedent’s above, we reverse the order and Board’s The the WCJ’s the Board. Board vacated reinstate WCJ’s decision. concluding that the WCJ did decision after an issue jurisdiction not have determine ORDER appeal filed an and Claimant paternity NOW, March the order with this Court. Compensation Appeal Board above-captioned matter reversed. Claimant that majority agrees is- has to determine BY CONCURRING OPINION JUDGE and reverses the Board. sues PELLEGRINI. 1) stating is no It does so there I in the concur result reached power to make restriction on the WCJ’s majority that Workers’ 2) determination, Pennsylva- under such (WCJ) Judge authority has the deter- law, previously made nia case WCJs have I mine the a child. write regarding survivors determinations I if separately believe that one of decedent at the relationship their requests testing DNA of a parties 3) death, jurisdictions time of other paternity, party non-party to determine compensation authority hold to so WCJ has order. of an (Decedent) case, the limited Boyle illegitimate purpose child for Daniel R. com- entitlement to workers’ scope establishing his was killed in the course and agree I with the (Rossa), While employment. pensation Patricia Rossa who benefits. lover, majority that the WCJ alleged was her former Decedent sepa- I paternity, write petition filed fatal on behalf of her determine issues claim testing (Claimant), if DNA has been rately because Ashley whom daughter, Rossa by parties, one of the the WCJ requested the her rela- product she was claimed party a the to order In the has tionship with the Decedent. here, to non-party, a as to action or even indefinitely the case postponed testing to aid determin- to to such file a submit parties opportunity allow the the con- then requested, If not ing paternity. paternity claim the trial court may elusive evidence not available be to “attendance of Whether witnesses.” the the paternity. WCJ to determine subpoena to power the “attendance of wit nesses” the workers’ are

In Strayer v. Ryan, 725 A.2d 785 requesting na includes to submit party to Court, (Pa.Super.1999), Superior the not- testing DNA has not ing yet DNA been decided in paternity testing pin- had point accuracy, held that testing Pennsylvania.2 However, DNA was at least one oth proper prove where father wanted to his er state that issue and addressed engage so as to in relationship pow determined that a trial court has the with give the child and the did not facts require non-party er to to submit to any rise to countervailing presumption of testing. DNA In Peter Rogers, Estate of paternity, testing pater- DNA to establish Sr., Deceased, N.J.Super. 583 A.2d nity be Additionally, should ordered. in (1990), held that Court based Simonich, Wawrykow v. Pa.Super. power on the of a to court order the Superior A.2d witnesses, attendance of it could order a Court there found was reasonable cause non-party provide sample, to a DNA stat for exhumation that for sought pur- ing: poses testing of DNA to determine the A trial court helpless dealing is not paternity of a child on behalf a whose a nonparty witness who refuses to claim against was made the decedent’s es- tate. submit to blood or Al- genetic testing. though the Act Parentage [as Penn- Because of the relative newness of DNA sylvania] subjects only parties to a court testing, have we never addressed whether compelling testing, such a court can order DNA either testing power has inherent order anyone requiring a relative of the deceased to its within to submit to such testing submit to DNA exhuming or they adjudi- tests when needed to are body requisite to obtain the DNA sample a genuine cate issue it. “It before comparison under 437 of Section (Act),1 possesses well settled Act which that a court gives power subpoena the WCJ the inherent to call witnesses on its amended, 1. Act party of June P.L. upon a civil or criminal action or its § provides: 77 P.S. That pursuant section initiative to 23 own Pa.C.S. 5104(c), § referee, secretary, statute does address the any any member 5103(c) non-party. issue of a Pa.C.S. of the board shall have issue provides: subpoenas require wit- attendance of books, production nesses doc- and/or any subject matter to this section in uments, paper pertinent any hearing. paternity, parentage identity or which of a Any who obey witness refuses to such sum- fact, court, upon child is a relevant its subpoenas, mons or or who refuses to be upon suggestion own initiative or made testify, guilty sworn or affirmed to or who is any person or behalf of whose blood is any contempt appear, may after notice to involved, or, may upon any party motion of court, and, punished contempt be as for action made at a time so as not to purpose, application may for this be delay proceedings unduly, shall order any made to within mother, alleged child and father to sub- whose territorial offense any party tomit blood tests. If refuses to committed, purpose which such court is tests, may submit to the the court resolve jurisdiction. hereby given (Emphasis add- paternity, parentage or iden- ed.) tity against party of a child enforce Pennsylvania rights While does a trial court allow its order if the of others and the testing upon request any justice order DNA require. interests of so 27.) (Employer’s brief at paternity. mine quest own in the for truth.” initiative omitted.) (Citations completely However, argument ig- If a has the this authority of explicit statutory require nonparty to a to nores the inherent (DPW) Public Welfare testimony Department of in the of give evidence the form truth, paternity. it also to determine quest for nonparty to to require inherent agency responsible the state DPW is give evidence in the form of blood a state implementing developing for sample quest for truth. in accordance with support for child plan Rogers, I reasoning Based on the be- Security Act. Sec- TV-D of the Social Title in 77 lieve the contained P.S. Code, the Domestic Relations tion 4372 of § compel 992 to the attendance wit- role, In § 4372. DPW is 23 Pa.C.S. with provides nesses the WCJ the authori- “paternity make available de- required ty testing party to order DNA of either to establish the termination services” and non-party proceeding. of children whom DPW has assistance, cash medical assis- provided employer Because the failed to ask by the tance or other services authorized testing, the non-party to submit to DNA Public Welfare Code. Sections only rely upon evidence could 4373(b)(1) 4373(b)(5) of the Domestic testimony provided, including was the Code, §§ 23 Pa.C.S. Relations non-party evidence Dece- 4373(b)(5). 4373(b)(1), dent’s father. Because that evidence, the constituted substantial expedite In the establishment order did not err in a determination as making behalf and enforcement of Rossa’s child. Because non-recipient recipient or any assistance rely solely we are constrained to on the services, may D receiving Title IV DPW I re- testimony presented, concur requiring issue an administrative sult. genetic testing to submit to “any individual paternity establish- purpose BY CONCURRING OPINION JUDGE 4377(a)(1) of the Domestic ment.” Section FRIEDMAN. 4377(a)(1). Code, § Relations Pa.C.S. I administratively concur in the result reached the Moreover, “may as- DPW majority. separately $5,000 I write per penalty up sess civil legal analysis a different ... fails to any person upon violation here, i.e., us whether a question before Sec- order.” comply [such] (WCJ) judge 4377(b) Relations of the Domestic tion 4377(b). to determine the Finally, § DPW 23 Pa.C.S. any if a minor child is deciding court of “may application make entitled benefits under section 307 or to the Commonwealth (Act). any Act1 ... enforcing purposes Court Id. final administrative order.” I. Jurisdiction these legislature granted DPW ex- The Paternity

A. DPW pursuant to section statutory powers plicit (Act 58), of Act December ar- 10 of Act 58 City Philadelphia (Employer) Act 11 of of common P.L. section in its brief that the courts gues (i) to then added subsection legislature jurisdiction to deter- pleas have exclusive amended, 77 P.S. P.L. 1. Act of June 1922(1) 1972,

section 5103 of the § Domestic Relations struction Act of Pa.C.S. (i) that, states, (stating pertinent ascertaining Code. Subsection the intention Assembly General the enactment part, that the name of the of a father child statute, a presume we that the shall General be included on the record of birth Assembly does not intend a result that a parents child of unmarried if a “court or execution). or impossible absurd agency juris- administrative of competent diction adjudication pa- has issued an paternity, As section 5103(i) ternity.” Section of the Domestic the Act provides 307 of 5103(i) Code, (em- § Relations Pa.C.S. payable “any child” under the age added). phasis § eighteen. 77 P.S. 562. This court has phrase “any held that the child” in section Based foregoing, abundantly on the it is “illegitimate 307 embraces children.”2 clear that the courts of do Lehigh Foundations, Inc. v. Workmen’s not have exclusive to deter- Board, Compensation Appeal 39 Pa. Therefore, mine paternity. Employer’s (1978). 576, In Cmwlth. A.2d argument must fail. holding, specifically so this court stated that, in some pro B. Workers’ ceedings, “illegitimate children” are re Paternity (cit quired prove paternity. Id. at 578 The legislature has not a enacted statu- Cairgle ing v. American Radiator & tory provision explicitly giving a WCJ the 249, 77 Sanitary Corp., Standard 366 Pa. power to paternity. determine (1951)). A.2d legislature given power a WCJ the Cairgle, attempted In a prove widow to hear compen- and determine “claims for that her three minor children entitled sation.” Section 2213 of the Administra- to workers’ compensation benefits after tive Code of Act April her the death of husband 1948. Howev- amended, P.L. § P.S. er, separated the widow had been from her power giving WCJ to determine the husband since and her three minor benefits, ultimate issue of entitlement children were born in 1942 and 1943. legislature certainly give intended to issue James Cairgle, was whether power every determine rele- the father employee, deceased of the vant The fact sub-issue. that the workers’ widow’s three minor children. The widow compensation statute does not contain that, although living testified she had been specific provision giving theWCJ another man had since she had sub-issue, particular pater- to decide like sexual intercourse with her husband from nity, does not mean that a lacks the time to time. did The referee not believe to decide sub-issue. Such an the widow’s concluded that interpretation statute would lead to Cairgle was not of the widow’s father result, making absurd it impossible Thus, minor three children. the referee a WCJ to execute the statutory duty to concluded the children were not enti- all compensation. claims for supreme tled to benefits. court ulti- Our 1922(1) decision; See Statutory section of the Con- mately although affirmed the wedlock, place phrase "illegitimate they I children” in are children bom out of shall because, 5102(a) quotes under section privileges they enjoy rights all the as if Domestic Relations "shall all children during been had bom wedlock of their legitimate irrespective be of the marital status 5102(a). parents.”23 Pa.C.S. and, parents, eveiy of their where concerning the de- factfinder struct the questioned court could have the referee’s society did not thinks he jurisdiction sponte, the court of our gree sua confidence jurisdiction lacked hold that the referee factu- correctness of have should issue.3 decide type of particular for a al conclusions serves to adjudication.” The standard statutory provisions Based on the above the li- risk of error between allocate the that, law, I hold where the and case would im- the relative tigants and indicate to a determi- issue of is essential deci- to the ultimate portance attached of a child is entitled to nation whether compensation workers’ benefits under sion.

Act, a to decide the WCJ 423, Texas, 99 Addington U.S. v. question. (1979) (citation S.Ct. 60 L.Ed.2d omitted). require types of cases Different II. Burden of Proof satisfy proof burdens of different that, if argues a Employer even typical Id. In a civil process. needs of due paternity, monetary dispute a between involving case failed to the cor- apply this litigants share parties, where the private proof. (Employer’s rect burden of brief at fashion, roughly equal the risk of error 82.) Employer contends the WCJ proof of a mere plaintiffs burden is applied a of the evidence preponderance In of Id. preponderance the evidence. standard, proper proof but the burden of is case, the interests of the criminal where (Employ- and convincing clear evidence.4 society our greater, are much defendant 85.) er’s brief at risk error imposes almost the entire of majority prop- that the WCJ states itself, proof beyond a rea upon requiring erly applied the “substantial evidence” involving indi sonable doubt. Id. cases 13.) However, (Majority op. standard. at are more substantial vidual interests that substantial evidence burden of money, reputa than mere such as loss rather, proof; substantial evidence is the an intermediate parental rights, tion or quantity probative, compe- credible and convincing evidence standard of clear and meet a tent evidence is sufficient to Kramer, 455 U.S. Santosky is used. v. particular proof. Because the burden (1982).5 745, 102 71 L.Ed.2d S.Ct. majority burden proper fails discuss the proof question work- Here, Ashley Rossa ers’ I cannot proceedings, (Claimant), mother, her through minor analysis accept majority’s of this issue. (Rossa), in a are involved Patricia Rossa entitlement dispute over Claimant’s Supreme The United States Court has benefits. The res- explained proof the function of a burden of as follows: rests whether olution Boyle, police R. officer who died Daniel proof The function of a ... [burden] employment, of his scope “in- the course factfinding, in the realm of is to time, Welfare, Department may, any at See K.J. Public 3. A court raise the issue of Friedman, (J. sponte. (Pa.Cmwlth.2001) agency’s jurisdiction sua Riedel v. dis A.2d Commission, denied, - Pa. -, 559 Pa. Human Relations senting), 788 A.2d appeal (1999). A.2d 381, (No. 2001 WL 303 MAL 11, 2001). filed October Employer requests a WCJ a remand so that using the clear and can consider the evidence (Employer’s convincing evidence standard. 36.) at brief Employer’s Claimant’s father. Boyle inter- Claimant’s father.9 The fact est in matter is not more Claimant did not better substantial only goes weight evidence Moreover, money. than the loss mere but, presented, certainly, evidence Claim- deceased, Boyle although the risk of an ant’s evidence constitutes substantial evi- erroneous determination of paternity is dence to finding WCJ’s minimized either party’s ability to seek paternity. Employer the opportunity had body exhumation of Boyle’s genetic evidence, including rebuttal evi- testing6 request or to Boyle’s that father dence from genetic testing. derived Al- Therefore, undergo genetic testing.7 the though Boyle’s father refused to undergo proper of proof burden in this case is the testing, DNA Employer could have sought preponderance of the evidence standard.8 the of Boyle’s body exhumation for such Here, Claimant the credible However, testing. Employer testimony so, of various witnesses to show failed to do cannot now eom- may 6. A court body Employer’s exhumation of a 8. the assertion that clear and con- where is there "reasonable cause" for it. vincing always apply evidence standard must Simonich, 340, Wawrykow v. Pa.Super. paternity clearly determinations of mis- (1994). person 652 A.2d seeking A exhu- paternity taken. Where the of a child born testing paternity mation for DNA to establish out disputed support of wedlock is a child may satisfy this "reasonable cause” criterion matter, the court makes the determination of by presenting credible or other evi- jury, in civil action without and relating dence issue. Id. proof preponderance burden established, Once "reasonable cause” is 4343(a) the evidence. Section of the Domes- that, person despite must pas- then show 4343(a); tic Relations 23 Pa.C.S. see sage years, samples blood or tissue would Rivera, Minnich v. 509 Pa. 506 A.2d 879 testing. be available for Id. (1986) (upholding preponderance that, Co., I note in Carroll v. Willow Brook standard). evidence (1933), Pa.Super. 165 A. 550 a wid- brief, Employer sought its ow cites Williams v. Mil for herself liken, daughter following Pa.Super. and her minor 506 A.2d death of her husband. The was attempted prove whether where man that her scope husband died in the course he was the natural father of two children. However, employment. his object- widow proof The court held his burden of ed to body exhumation of her husband’s for a convincing clear and evidence. complete autopsy. deputy Because coro- Williams, presumption the man had to rebut only speculate ner could about the cause of legitimacy, meaning mother complete autopsy, death without a the referee married to another man the children when was unable conclude widow’s hus- special It was born. this circumstance scope band died in the course and of his higher proof necessitated a burden of employment. Presumably, the widow if had preponderance than of the evidence. objected body, exhumation referee would have ordered it. Rossa, mother, (1) Claimant's testified that: Boyle May she dated from 1989 to March Wawrykow (stating appellant See 1990; (2) dating Boyle, while she did not date sought grouping samples blood DNA from the and, men; (3) dating Boyle, other while parents). Although Boyle’s decedent his engaged two in sexual relations. Claimant to undergo genetic testing father refused case, was born December 1990. Other wit- ignore we cannot the fact that the Boyle nesses testified that Rossa contacted availability greatly of DNA tests reduces the April Boyle pregnancy to inform her risk of error cases with issues. opinion that she continued to contact experts, In the of some have DNA blood Boyle grouping percent step- can until Claimant’s Rossa’s tests show a 99.99 birth. probability paternity. (citing Boyle that he Id. Smith v. testified discussed father (1986)). Shaffer, Pa. 515 A.2d 527 child matter of for Claimant. credibility determi- plain about WCJ’s paternity finding.10

nation and reasons, I would foregoing

For all of the Workers’ Com-

reverse decision Board and reinstate the

pensation Appeal decision.

WCJ’s JEFFERSON UNIVERSITY

THOMAS

HOSPITAL, Petitioner,

BUREAU OF WORKERS’ COMPENSA FEE REVIEW

TION MEDICAL Maryland

HEARING OFFICE Co., Respondents.

Casualty Insurance Pennsylvania.

Commonwealth Court Submitted on Briefs Nov. 2001. Maniloff, Philadelphia, R. Howard Decided Jan. petitioner. Publication Ordered March of re- entered on behalf appearance No

spondent. PELLEGRINI, Judge,

Before FRIEDMAN, FLAHERTY, Judge, and Judge. Senior PELLEGRINI, Judge. University Hospital

Thomas Jefferson (Provider) from an order appeals Bu- Industry, Department of Labor (Bureau) reau of Workers’ Office, deter- Hearing Medical Fee Review timely failed to file mining that Provider in accordance dispute application fee its 306(f.l)(5) of the Workers’ with Section 30.) addressing note, ployer’s at Without argues it brief Employer 10. As final would be the WCJ’s determination whether be fair to allow a WCJ to determine would not judicata, point does I out determination res paternity because WCJ's argu- judicata standing to raise res judicata not have be res and because neither would putative or his father personal representative ment on behalf putative nor his father (Em- representative. personal proceeding. party would be notes opinion only supports position its in the mat a court place gation pursuant ter. Hippensteel court relied order. The supported finding extent it Initially, Pennsyl no we note that

Case Details

Case Name: Rossa v. Workers' Compensation Appeal Board (City of Philadelphia)

Court Name: Commonwealth Court of Pennsylvania

Date Published: Mar 18, 2002

Citation: 794 A.2d 919

Court Abbreviation: Pa. Commw. Ct.