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

794 A.2d 919, 2002 Pa. Commw. LEXIS 150

• Court: Commonwealth Court of Pennsylvania
• Decided: March 18, 2002
• Status: Published

Opinions

OPINION BY

Senior Judge NARICK.¹

Ashley Rossa (Claimant), a minor, appeals from an order of the Workers’ Compensation Appeal Board (Board) that reversed the decision of a Workers’ Compensation Judge (WCJ) that granted the fatal claim petition filed on Claimant’s behalf by Patricia Rossa (Rossa), Claimant’s mother, and arising from the death of Daniel R. Boyle (Decedent). We reverse.

On February 6, 1991, Decedent, a police officer for the City of Philadelphia (Employer), died as a result of a gunshot wound to the head, sustained in the course and scope of his employment. On March 17, 1992, Rossa filed the fatal claim petition on behalf of her daughter and the matter was assigned to WCJ Lundy, who placed the matter in indefinite postponement status to allow the parties the opportunity to file a paternity claim in the court of common pleas. However, on August 5, 1999, Claimant’s counsel requested that the case be removed from inactive status and the matter was assigned to WCJ Bachman due to the illness of WCJ Lundy. Employer’s counsel objected to the reactivation, but the objection was overruled and additional hearings were held.

Claimant presented the testimony of Rossa, Patricia J. Ranalli, Claimant’s grandmother and Rossa’s mother, Raymond Ranalli, Rossa’s stepfather, Louis Rossa, Rossa’s brother, and Ethel Weir, Rossa’s grandmother. Employer presented the testimony of Thomas Patrick Boyle, Decedent’s father, who was a police detective working for Employer. The WCJ summarized the testimony of the various witnesses and found that:

16. This WCJ ... finds from the testimony of Patricia Rossa and the other fact witnesses who testified on her behalf, that Ashley L. Rossa is the daughter of Decedent, Daniel Boyle. This WCJ finds [Rossa’s] testimony credible that during the period she and Decedent dated, they had sexual relations. This WCJ finds [Rossa’s] testimony credible that she dated Decedent up until March 17, 1990. This WCJ finds [Rossa’s] testimony credible and convincing that during the period she and Decendent were dating and engaging in sexual relations, [Rossa] did not date other men. This WCJ finds consistency in [Rossa’s] testimony and the testimony of the fact witnesses on her behalf and the actions [Rossa] and the fact witnesses undertook in their belief that Decedent was the father in this matter, specifically [Rossa] contacting Decedent in April 1990 informing him of the pregnancy; Raymond Ranalli engaging in discussion with Decedent regarding support; Patricia Ranalli’s contacts with the Decedent during Ms. Rossa’s pregnancy and the telephone contact with Decedent on the day of Ashley Rossa’s birth, and [Ros-sa’s] naming Decedent, upon Ashley Rossa’s birth, on the Certificate of Birth, same Birth Certificate filed before Daniel Boyle’s death.

(WCJ’s decision, p. 7). The WCJ rejected the testimony of Thomas Boyle, Sr., Decedent’s father to the extent it was inconsistent with the finding that Decedent was Claimant’s father. Having so concluded, the WCJ granted the fatal claim petition.

Employer appealed to the Board, which vacated the WCJ’s decision, based on a conclusion that the WCJ did not have jurisdiction to determine an issue of paternity. However, because the Board concluded that the WCJ did have authority to determine issues of dependency, it remanded the matter for findings in that regard. Following that order, dated December 14, 2000, Claimant filed a petition for rehearing, requesting that the Board modify its order as to the remand. Although the Claimant’s petition was granted, the Board did not reach a different conclusion concerning the jurisdictional issue. Rather the Board determined that Claimant correctly argued and that Employer did not contest Claimant’s request to eliminate dependency as an issue in the case. Thus, the Board modified its prior order deleting the portion of its order remanding the matter to the WCJ.²

Claimant now appeals to this Court,³ and raises the following issues for our review: (1) whether the WCJ had jurisdiction to determine whether Claimant was entitled to benefits under Section 307 of the Workers’ Compensation Act (Act),⁴ (2) whether substantial evidence supports the WCJ’s finding that Claimant is Decedent’s daughter and (3) whether Claimant had to establish dependency in order for Claimant to receive benefits under Section 307 of the Act in light of Decedent’s death on February 6,1991.

We first address Claimant’s argument that the WCJ has jurisdiction to determine whether Claimant is entitled to benefits under Section 307 of the Act, an issue of first impression in Pennsylvania. Claimant argues that workers’ compensation judges have determined issues regarding children’s rights of entitlement to benefits under the Act, whether the children are natural, posthumous, legitimate or illegitimate, citing Hoffer Transportation Co. v. Workmen’s Compensation Appeal Board (Gaymon), 66 Pa.Cmwlth.310, 443 A.2d 1381 (1982). Claimant also asserts that a workers’ compensation judge’s jurisdiction includes factual disputes concerning parenthood, common law marriages, and dependency, citing Brandywine Paperboard Mills v. Workers’ Compensation Appeal Board (Zittle), 751 A.2d 1205 (Pa.Cmwlth.2000). Relying on Mohan v. Publicker Industries, Inc., 202 Pa.Super. 581, 198 A.2d 326 (1964), Claimant also contends that workers’ compensation judges have determined the class of dependents based upon the date of death of a decedent, the factual circumstances regarding survivors at the date of death and any change in conditions after death, which may eliminate the entitlement of a member to a class and not permit payment of benefits to the next class. See also McCusker v. Workmen’s Compensation Appeal Board (Rushton Mining Co.), 145 Pa.Cmwlth.261, 603 A.2d 238 (1991), aff'd 536 Pa. 380, 639 A.2d 776 (1994) (a WCJ determines whether a widow or widower is disqualified for benefits for being in a meretricious relationship); Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Sadvary), 524 Pa. 235, 570 A.2d 84 (1990) (a WCJ determines whether benefits should be reinstated because a meretricious relationship no longer exists). Claimant also relies on cases that decide whether children who are not actually children of the deceased are eligible for benefits where the decedent was in a position in loco parentis. Hertz Corporation v. Workers’ Compensation Appeal Board (Johnson), 724 A.2d 395 (Pa.Cmwlth.1999), petition for allowance of appeal denied, 559 Pa. 696, 739 A.2d 1060 (1999).

Claimant distinguishes Gainer v. Jones, 347 Pa.Super. 462, 500 A.2d 1148 (1985), a case relied upon by the Board and Employer, which dealt with a paternity action filed in the common pleas court. The issue of the court’s jurisdiction arose in the Gainer case because no complaint in support had been filed prior to the trial court’s order requiring blood testing. The court determined that this failure to file for support was not fatal to the paternity action. It discussed the jurisdiction of the trial court, indicating that the test of jurisdiction was the competency of the court to determine controversies of the general class of the case presented for its consideration, i.e., 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. Claimant contends that Gainer has nothing to do with a WCJ’s jurisdiction under the Act and does not deal with a statute that is separate from the Judicial Code. See also Article 5, Section 5 of the Pa. Constitution that gives the common pleas courts jurisdiction “except as may be otherwise provided by law.”

Claimant also distinguishes two cases relied upon by the Board that involved attorney fee disputes in workers’ compensation cases.⁵ Claimant contends that the Pitt cases have nothing to do with a lack of jurisdiction in the present matter. Those cases were decided on the basis that attorneys have a lack of interest in the benefits that are granted under the Act. In fact, Claimant contends that that distinction weighs in favor of allowing the WCJ to make a determination in this case, because this case does concern Claimant’s interest in benefits granted under the Act.

Additionally, in the reply brief, Claimant sites numerous cases from other jurisdictions that have considered the issue of paternity in a workers’ compensation context. The following cases cited by Claimant either conclude or support the conclusion that the workers’ compensation authority has the power to determine paternity of an illegitimate child for the limited purpose of establishing entitlement to workers’ compensation benefits: Sassmen v. SAIF Corp., 72 Or.App. 145, 694 P.2d 998 (1985) (in response to the argument that only the circuit court had jurisdiction to decide paternity, the court held that a referee had jurisdiction to decide any question concerning a minor child’s claim for workers’ compensation benefits even without the establishment of paternity by a court); Rios v. Industrial Commission, 120 Ariz. 374, 586 P.2d 219 (1978) (Commission has jurisdiction to determine whether the claimant is the child of the decedent for the purpose of determining her entitlement to workers’ compensation death benefits); Bettelon v. Metalock Repair Service, 137 Mich.App. 448, 358 N.W.2d 608 (1984), appeal denied, (April 23, 1985) (court held that although circuit court normally decides paternity the workers’ compensation board could decide the issue in that forum); Brown v. Ryder Truck Rental, 300 S.C. 530, 389 S.E.2d 161 (1990) (court held that absent an express statutory restriction on the broad powers of the workers’ compensation authorities, those authorities had jurisdiction to determine paternity); Goins v. Lott, 435 N.E.2d 1002 (Ind.Ct.App.1982) (where a determination of a child’s paternity is a necessary incident to determine workers’ compensation benefits, the board is empowered to decide that question); Carpenter v. Tony E. Hawley, Contractors, 53 N.C.App. 715, 281 S.E.2d 783 (1981), appeal denied, 304 N.C. 587, 289 S.E.2d 564 (1981) (for the limited purpose of establishing who is entitled to benefits under the workers’ compensation statute, the commission has the authority to make a determination as to the paternity of an illegitimate child); R.L.J. v. Western Sprinklers, Inc., 17 Kan.App.2d 749, 844 P.2d 37 (1992), appeal denied, 252 Kan. 1093 (1993) (for purposes of workers’ compensation benefits only, a workers’ compensation judge or reviewing court may determine parentage).⁶

In response, Employer first argues that the legislature has not granted to the Department of Labor and Industry (Department), to the WCJ or to the Board the power to make paternity determinations, citing Sections 2208 and 2213 of The Administrative Code⁷ that set forth the power invested in the Department and in workers’ compensation judges. The Department’s power is generally described as follows: “[t]o administer and enforce the laws of this Commonwealth .... relating to workers’] compensation and occupational disease compensation .... ” and “[t]o receive and refer to [workers’ compensation judges] all claims for compensation in contested or unpaid cases and to receive and refer to the [Board] all appeals from decisions of [workers’ compensation judges] and to mail copies of decisions to all affected parties.” Section 2208 of The Administrative Code. Workers’ compensation judges’ power is designated as the duty “to hear and determine such claims for compensation as shall be assigned to him by the Secretary of Labor and Industry.” Section 2213 of The Administrative Code. Because these grants of power in The Administrative Code and Claimant’s reliance to Section 307 of the Act do not make specific references to paternity determinations, Employer contends that such a determination is beyond the agency’s jurisdiction, citing inter alia Pennsylvania National Guard v. Workmen’s Compensation Appeal Board, 63 Pa.Cmwlth. 1, 437 A.2d 494 (1981), rev’d on other grounds, 510 Pa. 348, 508 A.2d 292 (1986) (administrative agency may only exercise powers which legislature has conferred by clear and unmistakable language).

Employer also contends that paternity determinations implicate substantial private interests and, therefore, require due process protections. Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480 (1982) (in a support action the court held that the impact of a determination of paternity on familial, liberty and property interests justifies the right to the appointment of counsel). Employer also relies on language in the Corra opinion, indicating that when paternity is established the finding is res judicata and can not be relitigated in a subsequent proceeding.

Employer further relies on Section 4343 of the Domestic Relations Code, 23 Pa. C.S. § 4343, which states in pertinent part that “[wjhere paternity of a child born out of wedlock is disputed, the determination of paternity shall be made by the court in a civil action without a jury.” Employer notes that this statute confers jurisdiction to the common pleas court in a support context, also giving the court the power to order the parties to submit to genetic testing. Employer also cites Pa. R.C.P. No.1910 that provides the procedure the parties follow when seeking support, including situations in which paternity is at issue. Relying on both the Domestic Relations Code and the Rules of Civil Procedure, Employer contends that the legislature’s intent was to place paternity decisions in a judicial forum, not in an administrative agency forum.

Additionally, Employer cites another section of the Domestic Relations Code that serves to legitimize children born out of wedlock. Section 5102 of the Domestic Relations Code, 23 Pa.C.S. § 5102, states that “[f]or the purpose of prescribing benefits to children born out of wedlock by, from and through the father, paternity shall be determined” either through marriage, the holding out that the child is the fathers or by “clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.” Employer also quotes Section 2107 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. § 2107, which for purposes of descent provides for the determination of the identity of a father of a child born out of wedlock in the same manner prescribed in 23 Pa.C.S. § 5102.

Employer also notes that Section 5103(i) of the Domestic Relations Code, 23 Pa.C.S. § 5103(i), which was added by amendment in 1993, concerns the inclusion of the father’s name on the birth certificate of a child of unmarried parents only when both father and mother sign a voluntary acknowledgment of paternity or when “[a] court or administrative agency of competent jurisdiction has issued an adjudication of paternity.” (Emphasis added.) Because the Department, the administrative agency here, is in Employer’s terms not specifically empowered by the legislature, it is not one of the agencies that is competent to make the paternity determination called for in this section of the Domestic Relations Code.

Employer also points out that a WCJ does not have the authority to order genetic testing and, therefore, cannot make an accurate determination as can the court of common pleas. Lastly, Employer discusses the Pennsylvania cases relied on by Claimant, contending that they are inap-posite because none involve the issue of paternity. Employer also asserts that jurisdiction to decide cases involving dependency, in loco parentis status, common law marriage and meretricious relationship issues does not confer jurisdiction on the WCJ to determine paternity. In support of this assertion, Employer cites Hippensteel v. Workmen’s Compensation Appeal Board (H.M. Kelly Trucking Co.), 72 Pa.Cmwlth.261, 457 A.2d 137 (1983), a case in which the court held that a petition for death benefits for a minor child born out of wedlock was untimely. The Hippen-steel opinion noted that the child was the illegitimate daughter of the decedent, who had been obligated to pay support pursuant to a court order. Based on this statement Employer believes that Hippensteel supports its position in the present matter.

Initially, we note that no Pennsylvania case law cited by either party has decided the issue presently before this court, particularly, where support and/or inheritance had not been previously sought nor would be sought in the future. We appreciate the fact that common pleas courts have generally determined paternity in the context of support and for purposes of descent. However, we recognize that workers’ compensation judges have often been called upon to make decisions concerning a variety of familial relationships with regard to entitlement to compensation benefits.

Neither party cited Wydra v. Philadelphia & Reading Coal & Iron Co., 153 Pa.Super. 529, 34 A.2d 326 (1943), alloc. denied by writ, a workers’ compensation case concerning children born out of wedlock that were legitimized by the subsequent marriage of their parents. Although in Wydra the paternity issue was not raised, the court held that the workers’ compensation authority as the fact finder credited testimony proving that a common law marriage took place and thereby legitimated the children. The court acknowledged that since sufficient competent evidence supported these findings, these findings could not be contravened. We believe this dispute like the one at issue before us is of the type contemplated by Sections 2208 and 2213 of The Administrative Code, cited by Employer. The result in Wydra determined entitlement to compensation benefits under the Act, a power encompassed in the authority invested in the Department. The result here will accomplish the same purpose.

Also in Hippensteel, a workers’ compensation case relied upon by Employer, the opinion only notes that a support obligation was in place pursuant to a court order. The Hippensteel court relied on that finding to the extent that it supported its conclusion that there was no excuse for the untimely fifing for compensation benefits. Furthermore, in Lehigh Foundations, Inc. v. Workmen’s Compensation Appeal Board, 39 Pa.Cmwlth. 416, 395 A.2d 576 (1978), the court held that illegitimate children were to be treated the same as legitimate children of a deceased employee and refused to relegate these children to a less favorable position that would require them to meet additional criteria. Again the question of paternity was not at issue, but no court order requiring support had been in effect either.

We also recognize that no statutory language compels a particular result in the present matter. Both the Domestic Relations Code and the Probate, Estates and Fiduciaries Code relied on by Employer make provisions that set forth the manner in which children born out of wedlock can be declared legitimate, however, none of the provision restrict the jurisdiction to determine paternity solely to the common pleas court. In fact Section 5103® of the Domestic Relations Code, discussed above, contemplates an administrative agency’s power to issue an adjudication of paternity and Employer cites nothing that eliminates the Department as one of the administrative agencies competent to make this determination.

Although Employer argues that the Department has not been specifically empowered to determine paternity by the legislature, we also recognize that no restriction on the WCJ’s power to make this determination can be found. Furthermore, we believe this argument is belied by Pennsylvania case law cited above in which factual decisions were made concerning survivors and their relationship to the descendent at the time of his or her death. We are persuaded by the reasoning contained in these prior decisions and in addition find enlightening the case law from other jurisdictions where the specific issue of jurisdiction of workers’ compensation authorities to determine paternity was squarely before the courts. We, therefore, hold that the WCJ has jurisdiction to determine paternity as it relates to entitlement to benefits within the workers’ compensation context. This conclusion, so long as it rests on findings based on substantial evidence in the record, is in no way different than other family relationship questions decided by a WCJ.⁸

Claimant next contends that if this Court determines that the WCJ has jurisdiction to decide this matter, substantial evidence was presented to support the WCJ’s findings. Having reviewed the record, we conclude that the WCJ’s findings are supported by the requisite evidence. Employer, however, contends that paternity must be established by clear and convincing evidence, citing Williams v. Milliken, 351 Pa.Super. 567, 506 A.2d 918 (1986), and that here the WCJ did not apply that standard. The Williams case and others cases cited by Employer sought relief before a common pleas court in the context of custody or support litigation. None involved the request for benefits under the Act, which applies the substantial evidence standard.

Employer also contends that the WCJ improperly relied on the birth certificate and the application for welfare support, asserting that they are self-serving documents filed by Rossa. Employer did not object to the admissibility of this evidence at the time it was submitted and can not now object to its admissibility. Moreover, Employer’s argument is actually an objection to the credibility and weight of the evidence, which is within the province of the WCJ who is free to accept or reject it. Greenwich Collieries v. Workmen’s Compensation Appeal Board (Buck), 664 A.2d 703 (Pa.Cmwlth.1995).

Claimant’s third argument addresses whether dependency must be established in order for benefits to be awarded. Since the class and amount of benefits are established at the time of Decedent’s death, Mohan, we look to the Act as it was at that time. Although the 1993 amendments have been interpreted to require that a decedent’s children must reside with him or her at the time of death, Hertz, that was not the law previously. Illegitimate children could qualify for benefits even though they were neither members of the decedent’s household nor supported by the decedent. See Hoffer (pursuant to its interpretation of Section 807 of the Act, the court held that the status of an illegitimate! child’s eligibility for benefits rested solely on whether he or she was under 18 years of age or a full-time student without more). Thus, we conclude that at the time Decedent died the establishment of dependency was not a requirement in order for a child to receive benefits.

Accordingly, for the reasons stated above, we reverse the Board’s order and reinstate the WCJ’s decision.

ORDER

NOW, March 18, 2002, the order of the Workers’ Compensation Appeal Board in the above-captioned matter is reversed.

1 . This case was originally argued before a panel consisting of Judge Pellegrini, Judge Friedman and Senior Judge Rodgers. Because of the untimely death of Senior Judge Rodgers, the case was submitted to Senior Judge Narick as a member of the panel.

2 . Because the Board eliminated the order to remand, any issues and argument by the parties to this appeal concerning whether the Board’s order is appealable need not be addressed by this Court.

3 . Our scope of review in a workers' compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth.436, 550 A.2d 1364 (1988).

4 .Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561 and 562. This section of the Act identifies who is entitled to death benefits and, specifically, provides that if there is no widow then compensation is to be paid to the decedent’s child or children.

5 . Larry Pitt and Associates v. Long, 716 A.2d 695 (Pa.Cmwlth.1998); Pitt v. WCAB (McEachin), 161 Pa.Cmwlth.60, 636 A.2d 235 (1993), appeal denied, 538 Pa. 661, 648 A.2d 792 (1994).

6 . Claimant points out that the two cases cited by Employer that hold to the contrary apply the Uniform Parentage Act, which is not applicable in Pennsylvania. See Taylor v. Morris, 88 Wash.2d 586, 564 P.2d 795 (1977); Poole Truck Lines, Inc. v. Coates, 833 S.W.2d 876 (Mo.Ct.App.1992).

7 . Act of April 9, 1929, P.L. 177, 71 P.S. §§ 568 and 573.

8 . We recognize that with DNA testing a court may have more definitive evidence before it. However, prior to the advent of DNA testing, trial courts arrived at paternity decisions based on evidence similar to that presented in this case. The availability of DNA testing alone should not deprive a WCJ of jurisdiction.