Rossa v. Workers' Compensation Appeal Board

JUSTICE NIGRO

DISSENTING.

As I disagree with the majority’s holding that a workers’ compensation judge has the authority to determine the paternity of a child in the context of workers’ compensation proceeding, I must respectfully dissent.

In my view, paternity must always be decided by the courts of common pleas. Indeed, I believe that the General Assembly has indicated its intent that paternity decisions be made by the trial courts through its enactment of several statutes that specifically refer to the trial courts’ authority to decide paternity and establish the procedures to be used by the trial courts in making such a decision. See 23 Pa.C.S. § 4343 (in the context of support matters, providing that “paternity shall be made by the court in a civil action without a jury,” empowering the trial court to order genetic testing in paternity cases, and setting forth the procedures for bringing such an action, the burden of proof to be applied, and the effect of paternity decisions made by other state courts); 23 Pa.C.S. § 5104 (authorizing the trial court to order blood tests to determine paternity and explaining how the tests may be used at trial); 20 Pa.C.S. § 2107 (providing that male may be deemed father of child born out of wedlock for purposes of intestacy decisions if there has been “a prior court determination of paternity’) (emphasis added); see also Pa. R.C.P. 1910.15 (detailing procedures associated with paternity determination in support actions before trial court, including rules regarding genetic testing, the effects of such testing, and the appealability of the paternity determination).

Moreover, because paternity impacts “substantial liberty interests” of both the father and child, I believe that due process concerns mandate that paternity always be tried before a trial court pursuant to the Rules of Civil Procedure *358and the Rules of Evidence rather than before a workers’ compensation judge where more lenient rules of procedure and evidence apply. See Corra v. Coll, 305 Pa.Super. 179, 451 A.2d 480, (1982) (finding paternity decisions implicate important privacy interests that require certain procedural due process safeguards, such as the right to appointed counsel); 77 P.S. § 834 (providing that “[njeither the board nor any of its members nor any workers’ compensation judge shall be bound by the common law or statutory rules of evidence in conducting any hearing or investigation”); Anzaldo v. Workers’ Compensation Appeal Bd. (M & M Restaurant Supply Co.), 667 A.2d 488, 491, 493 (Pa.Commw.1995) (deciding issues in case on basis of liberal rules of procedure and evidence in workers’ compensation cases); Frey v. Lehigh Engineering Co., 202 Pa.Super. 596, 199 A.2d 287, 290 (1964) (noting that evidentiary rules are relaxed in workers’ compensation cases to encourage claimants to proceed without counsel and that given the relaxation of evidentiary rules, hearsay is admissible).1

Accordingly, I would reverse the Commonwealth Court’s decision affirming the workers’ compensation judge’s paternity determination and remand the case for the trial court to determine the issue of paternity with regard to Appellee Ashley Rossa.

. As the parties did not question the workers’ compensation judge’s authority to determine paternity in Cairgle v. Am. Radiator Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951), I, unlike the majority, do not believe that this Court is in any way bound by that decision in determining whether the workers’ compensation judge had the authority to decide paternity here.

. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626.