Rossa ex rel. Rossa v. WCAB

• Decision Date: 17 October 2001
• Citation: 794 A.2d 919
• Parties: Ashley ROSSA, a minor through her mother, Patricia ROSSA, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent.
• Court: Pennsylvania Commonwealth Court

794 A.2d 919

Ashley ROSSA, a minor through her mother, Patricia ROSSA, Petitioner, v. WORKERS' COMPENSATION APPEAL BOARD (CITY OF PHILADELPHIA), Respondent.

Commonwealth Court of Pennsylvania.

Argued October 17, 2001.

March 18, 2002.

Marc S. Jacobs, Philadelphia, for petitioner.

Jonathan F. Ball, Philadelphia, for respondent.

Before PELLEGRINI, J., FRIEDMAN, J., and NARICK, Senior Judge.

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 [Rossa'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'd536 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 (1...