author: KELLY, Judge.

text:
    646 A.2d 1221
    Robert RIESER and Colleen Rieser, Appellants, v. John Burke GLUKOWSKY and Amy Glukowsky, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1994.
    Filed Aug. 26, 1994.

      Gerald N. Mezzanotte, Blue Bell, for appellants.
    Andrew S. Abramson, Philadelphia, for appellees.
    Before KELLY, POPOVICH and HESTER, JJ.
   KELLY, Judge.

In this appeal we must determine if a court of common pleas has the authority to enter a judgment non pros pursuant to a local rule of civil procedure which contravenes the statewide rules of civil procedure. Because the local rule is inconsistent with the statewide rules, the local rule is invalid, rendering the order entering judgment non pros void. We, therefore, vacate the order entering judgment non pros and the order denying the petition to open the judgment non pros.

Appellant, Robert Rieser, was injured in an automobile accident. Appellee, John Glukowsky, was driving the other car involved in the accident. The car being driven by appellee was owned by Amy Glukowsky, also an appellee in this case. Ms. Glukowsky’s vehicle was not insured at the time of the accident.

Consequently, appellants filed an uninsured motorist claim with their insurance company. Appellants also filed a praecipe to issue a writ of summons to appellees. Upon the filing of the praecipe, an arbitration hearing was scheduled. No other pleading or action ensued after the filing of the praecipe for the issuance of the writ of summons.

Neither appellants nor their counsel appeared at the scheduled arbitration hearing. Due to appellants’ failure to appear at the arbitration hearing, the trial court supervising the compulsory arbitration program entered a judgment of non pros on his own motion. Appellants filed a petition to open the judgment of non pros. The trial court denied the petition. This appeal follows.

Appellants raise the following issues on appeal.

1. WHETHER THE LOWER COURT ERRED AS A MATTER OF LAW IN ORDERING A JUDGMENT OF NON PROS WHERE NON PROS WAS ENTERED PURSUANT TO A PHILADELPHIA LOCAL RULE OF CIVIL PROCEDURE WHICH IS INCONSISTENT WITH A CONTROLLING PENNSYLVANIA RULE OF CIVIL PROCEDURE.

2. WHETHER LOWER COURT ERRED AS A MATTER LAW [sic] IN DENYING A PETITION TO OPEN JUDGMENT OF NON PROS WHERE PLAINTIFFS’ ATTORNEY’S ILLNESS WAS OFFERED AS A REASONABLE EXPLANATION AND LEGITIMATE EXCUSE FOR PLAINTIFFS’ FAILURE TO APPEAR AT AN ARBITRATION HEARING.

Appellants’ Brief at 4.

Appellants argue that the trial court erred when it entered a judgment non pros. Appellants aver that Pennsylvania Rule of Civil Procedure 1304 directs that an award in favor of appellees should have been entered under the circumstances of this case. Appellees counter, stating that the Philadelphia Civil Rule No. *1303(g) directs that a judgment non pros should be entered when a plaintiff fails to appear at a scheduled arbitration hearing. Appellees conclude that judgment non pros was, therefore, properly entered by the trial court judge. We disagree.

Before a court may issue an order, it must have authority to act. Mintz v. Mintz, 83 Pa.Super. 85 (1924). Jurisdiction over the subject-matter is fundamental to a court’s authority to act. Leveto v. Nat’l Fuel Gas Dist. Corp., 243 Pa.Super. 510, 366 A.2d 270 (1976).

Jurisdiction is the capacity to pronounce a judgment of the law on an issue brought before the court through due process of law. It is the right to adjudicate concerning the subject-matter in a given case.... Without such jurisdiction, there is no authority to give judgment and one so entered is without force or effect.

Mintz v. Mintz, supra 83 Pa.Super. at 88 (1924).

It is well-settled that this court may raise the question of subject matter jurisdiction sua sponte. Barndt v. Barndt, 397 Pa.Super. 321, 580 A.2d 320 (1990); Hughes v. Pennsylvania State Police, 152 Pa.Cmwlth. 409, 619 A.2d 390 (1992), alloc. denied, 536 Pa. 633, 637 A.2d 293 (1993). Appellate courts have the authority to address the issue of the subject matter jurisdiction of the trial court even if the parties do not challenge the trial court’s jurisdiction while the case is before the trial court. United Carolina Bank v. Martocci, 416 Pa.Super. 16, 610 A.2d 484 (1992).

The test of jurisdiction is whether the trial court is competent to hear and determine controversies of the general nature of the matter involved. Department of Public Welfare v. Court of Common Pleas, Philadelphia City, 506 Pa. 410, 485 A.2d 755 (1984); Hanik v. Pennsylvania Power Co., 308 Pa.Super. 352, 454 A.2d 572 (1982). Jurisdiction lies if the court had power to enter upon the inquiry, not whether it might ultimately decide that it could not give relief in the particular case. Hanik v. Pennsylvania Power Co., supra at 359, 454 A.2d at 576. When there is no jurisdiction, there is no authority to pronounce judgment. Meritor Mortgage Corp. East v. Henderson, 421 Pa.Super. 339, 617 A.2d 1323 (1992). Where a court lacks jurisdiction in a case, any judgment regarding the case is void. See Meritor Mortgage Corp. East v. Henderson, supra; Leveto v. Nat’l Fuel Gas Dist. Corp., supra; Mintz v. Mintz, supra.

The effect of a void judgment is that it must be treated as having never existed.

A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based thereon.

Although it is not necessary to take any steps to have a void judgment reversed or vacated, it is open to attack or impeachment in any proceedings, direct or collateral, and at any time or place, at least where the invalidity appears upon the face of the record. It is not entitled to enforcement and is, ordinarily, no protection to those who seek to enforce it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.

In short, a void judgment is regarded as a nullity, and the situation is the same as it would be if there were no judgment. It accordingly leaves the parties litigant in the same position they were in before the trial.

First Seneca Bank v. Greenville Distrib. Co., 367 Pa.Super. 558, 556-67, 533 A.2d 157, 162 (1987).

When a case is sent to arbitration, a hearing, at which evidence may be presented, will be held. See 42 Pa.C.S.A. § 7361(a); Pa.R.Civ.P. 1305, 1304 and 1038. An arbitration hearing will be conducted as nearly as may be as a trial without a jury. Pa.R.Civ.P. 1304 and 1038. If a plaintiff fails to appear at a scheduled arbitration hearing, then the board of arbitrators shall enter an award in favor of the defendant. Pa.R.Civ.P. 1304(a). See also McGonigle v. Currence, 387 Pa.Super. 511, 564 A.2d 508 (1989); Pa.R.Civ.P. 1303(b). Once the arbitration award is made, the board of arbitrators must file the arbitration award with the prothonotary. Pa. R.Civ.P. 1306. The prothonotary shall enter the award of record upon the proper docket. Pa.R.Civ.P. 1307(a). If no appeal is taken within thirty days of the entry of the award on the docket, the prothonotary, on praecipe, shall enter judgment on the award. Pa.R.Civ.P. 1307(c).

An appeal from an arbitration award shall be taken by filing a notice of appeal no later than thirty days after the entry of the arbitration award on the docket. Pa.R.Civ.P. 1308. See also Wilk v. Girard Bank, 342 Pa.Super. 488, 493 A.2d 695 (1985). When a party appeals an award, a de novo trial shall be held. Pa.R.Civ.P. 1311. See also, 42 Pa.C.S.A. § 7361(d); Weber v. Lynch, 473 Pa. 599, 375 A.2d 1278 (1977); McGonigle v. Currence, supra; Lough v. Spring, 383 Pa.Super. 85, 556 A.2d 441 (1989); Wilk v. Girard Bank, supra.

There is nothing in the language of 42 Pa.C.S.A. § 7361 or Rules 1301 et seq. of the Pennsylvania Rules of Civil Procedure which conditions a party’s statutory right to appeal the arbitration award upon the party’s presence at the hearing. McGonigle v. Currence, supra. See Weber v. Lynch, supra (almost identical language in the Compulsory Arbitration Act of 1836 construed as not denying a party the right to appeal an arbitration award if the party appealing did not appear at the arbitration hearing). See also Sipe v. Pennsylvania, 219 Pa. 210, 68 A. 705 (1908) (Compulsory Arbitration Act of 1836 does not permit denial of appeal to a party who fails to appear at the arbitration hearing); Barmak v. Duquesne Light Company, 36 D & C.3d 135 (1985) (case law establishes' that a plaintiff may not be barred from proceeding with the appeal because of the party’s failure to be at the arbitration hearing). Nor do, the explanatory notes of Pennsylvania Rules of Civil Procedure 1303 and 1304 suggest that a party’s right to appeal the award is conditioned upon his appearance at arbitration. Rather, the notes specifically state that an award should be entered when a party fails to attend the arbitration hearing. Pennsylvania Rule of Civil Procedure 1303’s explanatory note states:

Subdivision (b). A problem frequently encountered in present practice is the failure of a party to appear at the hearing. Present practice does not permit a nonsuit of a non-appearing plaintiff. Indeed a nonsuit would be impractical, since there is no machinery by which a nonsuit could be removed by the arbitrators. Rule 1303(b) provides that if a plaintiff does not appear, the arbitrators shall, unless the court has ordered a continuance, proceed to enter an award. Similarly, if a defendant does not appear, and the court has not ordered a continuance, the arbitrators proceed to hear the matter and enter an award. The remedy for dissatisfaction with the award is to appeal.

Pa.R.Civ.P. 1303 Explanatory Note.

The explanatory note to Pennsylvania Rule of Civil Procedure 1304 states:

Subdivision (a) [of Pennsylvania Rule of Civil Procedure 1304] codifies the present practice that compulsory nonsuits are not permitted. Instead, if the plaintiff does not appear, the arbitrators should enter an award for defendant.

Pa.R.Civ.P. 1304 Explanatory Note.

While explanatory notes are not binding, they may aid in interpreting the meaning of the rules. Macioce v. Glinatsis, 361 Pa.Super. 222, 522 A.2d 94 (1987). See also McGonigle v. Currence, supra; Pa.R.Civ.P. 129(e). This is especially true where the explanation given in the note is consistent with the language of the rule itself. McGonigle v. Currence, supra.

Pennsylvania courts have consistently held that a party who failed to appear at an arbitration hearing cannot be denied a de novo appeal of an arbitration award. See McGonigle v. Currence, supra (irrespective of the reason therefore, a party’s non-appearance at a scheduled arbitration hearing does not waive the party’s right to appeal the arbitration award);’ Hall v. Reeb, 382 Pa.Super. 452, 555 A.2d 926 (1989) (while we do not countenance the intentional failure to appear at an arbitration hearing, we cannot deny plaintiff the right to appeal the arbitration award and receive a trial de novo). Therefore, we must conclude that the Pennsylvania Rules of Civil Procedure mandate that an award will be entered in favor of the defendant when the plaintiff fails to appear. The plaintiff, who does not appear at an arbitration hearing, has a right to a de novo appeal which may not be denied because the plaintiff failed to attend the arbitration hearing. McGonigle v. Currence, supra; Hall v. Reeb, supra.

An arbitration hearing was scheduled for the instant case. Appellants, the plaintiffs, did not appear at the scheduled arbitration hearing. No arbitration award was entered even though Rule 1304(a) of the Pennsylvania Rules of Civil Procedure mandates the entry of an award in favor of appellees, the defendants, in such circumstances. What did happen was that the trial court entered- a judgment non pros on its own motion because appellants failed to appear.at the scheduled arbitration hearing. The Pennsylvania Rules of Civil Procedure 1303 et seq. were not followed.

Appellees, however, aver that the judgment of non pros was properly entered pursuant to Philadelphia Civil Rule No. *1303(g) which authorizes a judgment non pros for failure to prosecute an arbitration proceeding. Appellees contend that Philadelphia Civil Rule No. *1303(g) is a local rule which, as permitted by the Pennsylvania Rules of Civil Procedure 1301 et seq., validly deals with one of the many details relating to the procedure of arbitration. Appellees further argue that Philadelphia Civil Rule No. *1303(g), which directs that if counsel does not appear at the arbitration hearing the case shall be non prossed, does not conflict with Pennsylvania Rule of Civil Procedure 1304(a), which directs an award will be entered in defendant’s favor if plaintiff does not appear at the arbitration meeting. We must disagree.

Rule 1304(a) of the Pennsylvania Rules of Civil Procedure states:

(a) Except as otherwise prescribed by these rules, the board of arbitrators shall conduct the hearing in conformity with Rule 1038(a). A voluntary nonsuit may be taken by a plaintiff as permitted by Rule 230. If the plaintiff fails to appear or if, at the conclusion of the plaintiffs case, the board deems the evidence insufficient to support an award in favor of the plaintiff, [the board ] shall enter an award in favor of the defendant. If the board does not do so, the defendant may proceed to offer evidence.

Pa.R.Civ.P. 1304(a) (emphasis added).

Rule Number *1303(g) of the Philadelphia Civil Rules states:

(G) Counsel shall give immediate written notification to the Deputy Court Administrator for Arbitration of any settlement of cases or changes of appearance. Notification may be given by telephone where time does not permit written notification. Failure to do so will result in the imposition of sanctions. Otherwise, if counsel does not appear for the hearing, the case will be non prossed.

Phila.Civ.R. No. 1303(g) (emphasis added).

We recognize that “[l]ocal courts have the power to formulate their own rules of practice and procedure.” Murphy v. Armstrong, 424 Pa.Super. 424, 622 A.2d 992 (1993); Pennridge Elec., Inc. v. Souderton School, 419 Pa.Super. 201, 214, 615 A.2d 95, 102 (1992). See also Nuttall v. Nuttall, 361 Pa.Super. 320, 522 A.2d 603 (1987); Dillion by Dillion v. Nat. R.R. Corp. (Amtrak), 345 Pa.Super. 126, 497 A.2d 1336 (1985). Local rules will be given equal weight to the rules established by our Supreme Court provided that the local rules do not abridge, enlarge or modify the substantive rights of a party. Murphy v. Armstrong, supra; Pennridge Elec., Inc. v. Souderton School, supra; Dillion by Dillion v. Nat. R.R. Corp. (Amtrak), supra. The local rules are to implement the statewide rules, Stock v. Arnott, 415 Pa.Super. 113, 608 A.2d 552 (1992); Dillion by Dillion v. Nat. R.R. Corp. (Amtrak), supra; Pa.R.Civ.P. 239, but they “shall not to be inconsistent with any general rule of the Supreme Court or any Act of Assembly.” Murphy v. Armstrong, supra; Stock v. Arnott, supra; Pa. R.Civ.P. 239(b)(1). See also Ricci v. Ricci, 318 Pa.Super. 445, 465 A.2d 38 (1983) (local rules must be consistent and not in conflict with the Pennsylvania Rules of Civil Procedure). If a local rule conflicts with a statewide rule of civil procedure, the local rule is invalid. Murphy v. Armstrong, supra; Nuttall v. Nuttall, supra.

Pennsylvania Rule of Civil Procedure 1304(a) authorizes an award in favor of a defendant when a plaintiff fails to appear for an arbitration hearing. Pennsylvania Rule of Civil Procedure 1308 gives plaintiff the right to appeal that award. The Pennsylvania Rules of Civil Procedure do not deny the plaintiff the right to appeal when the plaintiff fails to appear at the arbitration hearing. It is, therefore, inconsistent for Philadelphia Civil Rule No. *1303(g) to direct the entry of a judgment non pros when a plaintiff does not appear at an arbitration hearing, thus denying a plaintiff the right to appeal an arbitration award. As the local rule is inconsistent with the statewide rules, the statewide rules, which mandate an award in favor of the defendant when the plaintiff fails to appear at the arbitration hearing and allow de novo appeal, control. See Murphy v. Armstrong, supra; Nuttall v. Nuttal, supra.

The trial court does not rely upon Philadelphia Civil Rule No. *1303(g) in its order entering a judgment non pros. Nor does it mention Philadelphia Civil Rule No. *1303(g) in its opinion supporting the order which denies appellants’ petition to open the judgment non pros. Rather, the trial court opinion relies on Rule 1303 and Rule 218(a) of the Pennsylvania Rules of Civil Procedure as authority to enter a judgment non pros when the plaintiff fails to appear at a compulsory arbitration proceeding. (Opinion at 3).

Pennsylvania Rule of Civil Procedure 1303(a) provides that the procedure for fixing the date, time and place of the arbitration hearing shall be prescribed by local rules. Entering a judgment of non pros because a plaintiff did not appear at a hearing is not a procedure for fixing the date, time and place of an arbitration hearing. Subsection (b) of Pennsylvania Rules of Civil Procedure 1303, which directs that the hearing should proceed when one party is ready and the other is not, does not expressly permit local rules to set procedure dealing with these circumstances.

The explanatory note to Pennsylvania Rules of Civil Procedure 1303(b) explains that it is a frequent problem that a party does not appear at the hearing. The note also expressly states that a non-suit against a non-appearing plaintiff is not permitted. The explanatory note provides guidance on what should be done if a plaintiff does not appear and a trial court has not ordered a continuance. The explanatory note states that an award should be entered.

The note for Rule 1303(b) of Pennsylvania Rules of Civil Procedure further addresses the issue of when an appearing party does not wish to proceed with the arbitration hearing in the absence of the non-appearing party.

As a matter of professional courtesy, one party appearing when the other party does not might not wish to proceed without a further opportunity for opposing counsel to explain his absence. This poses a delicate question.
The arbitrators are given no power to grant continuances. Only the court may do so, under Rule 1303(b). Although under Rule 1304(b) the arbitrators may “adjourn an uncompleted hearing from day to day,” adjournment of a hearing that has never begun is in effect a continuance. Nor is a request of counsel for a continuance as a courtesy to his opponent sufficient to permit the arbitrators to continue the matter. Perhaps one solution would be for counsel to ask the arbitrators to pass the case temporarily to give him time to move the court for a continuance.
Local rules may regulate this problem, but must do so with great care so as to provide that it is the court, and not the arbitrators, that controls the progress of the case.

Pa.R.Civ.P. 1303 Explanatory Note.

The note suggests that local rules may be formulated to deal with the situation where a continuance is desired by the appearing party because of other party’s absence. The note does not suggest the formulation of local rules to deal with the situation in which the defendant wishes to proceed in the plaintiffs absence. Rule 1304(a) of the Pennsylvania Rules of Civil Procedure explicitly states what is to be done in such a circumstance, and the explanatory note to Pennsylvania Rules of Civil Procedure 1303 expressly recognizes that an award is to be entered even though the plaintiff fails to appear. Thus, we do not agree that local rules may be formulated to direct the entry of judgment non pros when the Pennsylvania Rules of Civil Procedure concerning arbitration do not call for the entry of judgment non pros in compulsory arbitration cases where the plaintiff has failed to appear.

The trial court opinion also relies upon Pennsylvania Rule of Civil Procedure 218(a) as authority to enter judgment non pros under the circumstances presented in this case.

RULE 218. PARTY NOT READY WHEN CASE IS CALLED FOR TRIAL

(a) Where a case is called for trial, if without satisfactory excuse a plaintiff is not ready, the court may enter a nonsuit on motion of the defendant or a non pros on the court’s own motion.

As appellants point out and as is apparent from the title and text of the rule, Rule 218 of the Pennsylvania Rules of Civil Procedure addresses trials not arbitration hearings. When the words of a rule are clear and free from all ambiguity, the letter of the rule is not to be disregarded. Pa.R.Civ.P. 127. Further, it is presumed that the entire chapter of rules is to be effective. Pa.R.Civ.P. 128(b). If Pennsylvania Rule of Civil Procedure 218 is utilized in arbitration cases as well as trials, then Pennsylvania Rules of Civil Procedure 1303(b) and 1304(a) would not be effective; in fact, they would be superfluous. In order to give effect to each rule, Rule 218 of the Pennsylvania Rules of Civil Procedure application must be limited to trials and Pennsylvania Rules of Civil Procedure 1303(b) and 1304(a) must be applied to arbitration hearings. Thus, Pennsylvania Rule of Civil Procedure 218(a) does not give common pleas court judges the authority to enter the judgment non pros when a plaintiff fails to appear at an arbitration hearing.

Accordingly, because Philadelphia Civil Rule No. *1303(g) authorizing the entry of judgment non pros is inconsistent with the Pennsylvania Rule of Civil Procedure 1304(a) and as neither Pennsylvania Rule of Civil Procedure 218 nor Pennsylvania Rule of Civil Procedure 1303 authorizes the trial court to enter a judgment non pros when a plaintiff fails to appear at a compulsory arbitration proceeding, the trial court in the instant case lacked subject matter jurisdiction to enter such a judgment non pros on that basis. Thus, the judgment non pros is a void judgment and the subsequent order denying appellants’ petition to open that void judgment is also a nullity. See First Seneca Bank v. Greenville Distrib. Co., supra 367 Pa.Super. at 556-57. 533 A.2d at 162.

Therefore, based upon the foregoing, we vacate the order denying appellants’ petition to open the judgment non pros as it is based upon a void judgment, and we vacate the order entering the void judgment of non pros. We remand this case to the trial court with instructions to direct the board of arbitrators to reconvene and to enter an award in favor of appellees from which appellants can exercise their rights to a de novo appeal before the Court of Common Pleas.

January 12, 1993 order vacated. October 13, 1992 order vacated. Case remanded. Jurisdiction relinquished.

      . Counsel for appellants explains that he was ill at the time of the arbitration hearing. He was suffering from an intestinal virus and was absent from work for a week. Counsel states he became ill right before the hearing.

      . Appellant’s petition was only to open the judgment of non pros. Appellants did not petition to strike the judgment of non pros.

      . Although in issue one appellants allege that it was error to enter the judgment non pros, they do not ask us in their brief to vacate the order or to strike the judgment non pros.

      . When we state that appellant has a right to appeal, we assume that the appellant has perfected his right to appeal, i.e., filed a timely notice of appeal, filed a proper notice of appeal, etc. See Pa.R.Civ.P. 1308.

      . We recognize this Rule and the case law allows parties to intentionally skip arbitration and proceed to a trial de novo. However, the rules of civil procedure are clear and until the Supreme Court sees fit to change them, we must abide by them. The fact that we must abide by rules does not mean we condone the abuse of the rules governing compulsory arbitration.

      . Judgment non pros, while it is in favor of appellee, cannot be appealed by appellant, with the result of the appeal being a trial de novo. Rather, appellants must petition to open judgment of non pros. If the petition to open is successful, it is not clear what would be the next step in the proceeding. As no arbitration award was entered, the parties could conceivably have to go through arbitration.

      . Due to the disposition of this case, we do not address issue two.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    646 A.2d 1228
    Alfred L. ROMANO and Allen L. Gross, d/b/a Alalla Partnership, Appellants, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 6, 1994.
    Filed Aug. 26, 1994.

      Arthur S. Alexion, Glenside, for appellants.
    Judith Daley, Wilkes-Barre, for appellee.
    Before CIRILLO, JOHNSON and CERCONE, JJ.
   CIRILLO, Judge:

Alfred L. Romano and Allen L. Gross, d/b/a Alalia Partnership (collectively as “Alalia”), appeal from the order entered in the Court of Common Pleas of Luzerne County denying their request for counsel fees pursuant to 42 Pa.C.S.A. § 8371 (Purdon’s Supp.1991). We vacate and remand for proceedings consistent with this opinion.

The underlying facts are not in dispute: On March 27,1992, a building owned by Alalia and insured by appellee Nationwide Mutual Fire Insurance Company (Nationwide) was partially damaged by fire. The insurance policy in effect at the time of the fire was designated as a “Businessowners Special Policy” and listed “Alfred L. Romano, Jr. & Allen L. Gross, d/b/a Alalia” as the named insured(s). Nationwide’s limit of liability for the insured premises was $175,000.00. Nationwide offered to pay out $73,214.54 for the loss; Alalia refused the offer and estimated its damages at $94,426.37. On June 8, 1992, Nationwide paid $30,000.00 to Alalia in advance on the final settlement figure. Thereafter, the parties submitted the claim for appraisal. As mandated by 40 P.S. § 636, the insurance policy issued to Alalia contained the following appraisal clause:

Appraisal

If we and you disagree on the amount of loss, either may make a written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire.... The appraisers will state separately the amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding—

******

If there is an appraisal, we will retain our right to deny the claim.

After inspecting the damages to the insured property and after reviewing the parties’ appraisers’ reports, the umpire set the amount of the loss at $87,900.46 (hereinafter referred to as “the umpire’s award”).

Nationwide refused to pay the full amount of the award. Alalia, therefore, filed a petition in the Court of Common Pleas of Luzerne County to confirm the appraisal award. 42 Pa.C.S.A. § 7342(b). Upon service of the petition, Nationwide paid $43,646.52 to Alalia, the balance of the umpire’s award. Alalia then moved for counsel fees pursuant to 42 Pa.C.S.A. § 8371, infra, on the grounds that Nation-wide, by refusing to comply with the umpire’s award, forced Alalia to hire counsel and file suit in order to enforce the umpire’s award. In its supporting brief, Alalia alleged that “[s]uch conduct is Bad Faith per se since it is a violation of the Unfair [Insurance] Practices Act (the UIPA).” 40 P.S. § 1171.1 et seq.

Judge Stevens denied the motion on the basis that the trial court had no jurisdiction to hear alleged violations of the UIPA. Judge Stevens rationalized the dismissal as follows:

Because the courts have no authority to determine whether an insurer violated the [UIPA], it reasonably follows that this Court may not determine whether the Defendant’s actions violated the [UIPA]. The Supreme Court of Pennsylvania has decided that because there is a system of sanctions established under the [UIPA], there is no need for the [A]ct to be supplemented by a judicially created cause of action. See, D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 431 A.2d 966 (1981).

This timely appeal followed. Alalia presents four issues for our consideration:

(1) Whether an insurer which forces its insured to hire counsel and institute litigation in order to enforce a clear right under the law and the policy commits bad faith?

(2) Whether an insurer which forces its insured to hire counsel and institute litigation in order to enforce a measure of damages repeatedly and unwaveringly sustained by the Pennsylvania Appellate Courts for over sixty (60) years, commits bad faith?

(3) Whether the insurance policy issued by Respondent to Appellant incorporates the substantive laws of the Commonwealth including the Unfair Insurance Practices Act?

(4) Whether the standards defined in the Unfair Insurance Practices Act should be used by the Courts as the standard for the public and legislative policy of the Commonwealth and used to establish bad faith per se?

Notwithstanding the above-enumerated questions presented, we note that because Judge Stevens dismissed Alalia’s petition due to lack of jurisdiction and, hence, did not reach the merits of Alalia’s petition, Alalia’s fourth question presented is the only issue properly before this court; that is, whether the courts of this Commonwealth are permitted to entertain petitions for counsel fees, costs, punitive damages, etc., pursuant to 42 Pa.C.S.A. § 8371, based upon the bad faith conduct of insurers as defined in the UIPA or other similar laws? This court cannot decide, therefore, whether Nationwide’s tender of an amount less than the full amount of the umpire’s award prior to Alalia’s filing of the instant action, without prejudice to Alalia’s right to recover a larger amount, constitutes bad faith. See Kauffman v. Aetna Casualty & Sur. Co., 794 F.Supp. 137 (ED.Pa.1992).

Initially, we note our standard of review in this case. The role of an appellate court in reviewing the trial court’s final judgment is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Furthermore, the findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a jury verdict and will not be disturbed on appeal absent error of law or abuse of discretion. Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583 (1992); Reuter v. Citizens & Northern Bank, 410 Pa.Super. 199, 599 A.2d 673 (1991); Porter v. Kalas, 409 Pa.Super. 159, 597 A.2d 709 (1991). When this court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and, conversely, all unfavorable inferences rejected. Short v. Metropolitan Life Ins. Co., 339 Pa.Super. 124, 488 A.2d 341 (1985).

The Pennsylvania Supreme Court has long held that an insurer must act with the “utmost good faith” toward its insured. Fedas v. Insurance Co. of Pa., 300 Pa. 555, 558, 151 A. 285, 286 (1930); see also Dercoli v. Pennsylvania Nat’l Mut. Ins. Co., 520 Pa. 471, 554 A.2d 906 (1989); Cowden v. Aetna Casualty & Sur. Co., 389 Pa. 459, 134 A.2d 223 (1957). This heightened duty is necessary because of the special relationship between an insurer and its insured and the very nature of the insurance contract. The insurer’s duty of good faith, therefore, is contractual and arises because the insurance company assumes a fiduciary status by virtue of the policy’s provisions which give the insurer the right to handle claims and control settlement. See, e.g., Gray v. Nationwide Mut. Ins. Co., 422 Pa. 500, 223 A.2d 8 (1966).

In D’Ambrosio v. Pennsylvania Nat’l Mut. Casualty Ins. Co., 494 Pa. 501. 431 A.2d 966 (1981), the case relied upon by the trial court in this case, the Supreme Court of Pennsylvania declined to create a common law remedy for bad faith on part of insurers. Id., 494 Pa. at 507, 431 A.2d at 970. In 1990, the Pennsylvania legislature responded by enacting 42 Pa.C.S.A. § 8371, which created a statutory remedy for bad faith conduct:

In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

(1) Award interest on the amount of the claim....

(2) Award punitive damages against the insurer.

(3) Assess court costs and attorney fees against the insurer.

42 Pa.C.S.A. § 8371 (emphasis added).

Although the language of Section 8371 is not clear as to whether the statute creates an independent cause of action or merely allows a court to provide an additional remedy if it determines that an insurance company has acted in bad faith, the emerging jurisprudence treats Section 8371 as creating a separate and distinct cause of action. See Kauffman, supra; Lombardo v. State Farm Mut. Auto. Ins. Co., 800 F.Supp. 208 (E.D.Pa.1992); see also 14 Summ.Pa.Jur.2d Insurance § 22:9 (1994) (42 Pa.C.S.A. § 8371 provides for a separate and independent cause of action against an insurer). This issue is of no real concern in this case, however, because Alalia did not initiate the underlying action via a petition for counsel fees pursuant to 42 Pa.C.S.A. § 8371, but rather, commenced the trial court proceedings via its petition to confirm the umpire’s arbitration award.

An examination of the record suggests that after Nationwide tendered the balance of the umpire’s award, Alalia made an oral motion for counsel fees before Judge Stevens pursuant to 42 Pa.C.S.A. § 8371. Supporting and opposing briefs were filed with the Court Administrator of Luzerne County and made part of the record. See Pa.R.A.P. 1921. .

It is clear that the UIPA and the Department of Insurance Regulations can only be enforced by the State Insurance Commissioner and not by way of private action. A closer question, however, is whether an insured, like Alalia, may point to “bad faith” conduct as defined in various provisions of the UIPA as a basis for recovery under 42 Pa.C.S.A. § 8371.

One particular section of the UIPA specifically prohibits insurers from:

Compelling persons to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts due and ultimately recovered in actions brought by such persons.

40 P.S. § 1171.5(a)(10)(vii) (1974). Based on the foregoing, Alalia argues that Nationwide committed bad faith by compelling it to incur the expense of retaining counsel in order to enforce the umpire’s appraisal award.

Prior to the creation of a statutory cause of action for an insurer’s bad faith under 42 Pa.C.S.A. § 8371, effective July 1, 1990, Pennsylvania courts prohibited insureds from asserting UIPA violations as grounds for recovery under any other theory. See D’Ambrosio v. Pennsylvania Natl Mut. Casualty Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981); Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988); Hardy v. Pennock Ins. Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987). In Hardy, an insured attempted to raise a violation of the UIPA before this court; in response, we made it clear that, at that time, such an action was not properly within our jurisdiction. In so holding, we stated:

[A]ppellants sought statutory relief before the eourts rather than requesting the Department of Insurance to review the action to determine whether a hearing was warranted. This act was contrary to D ’Ambrosio [v. Pennsylvania Nat. Mut. Cas. Ins. Co., 494 Pa. 501, 431 A.2d 966 (1981) ], and the express administrative procedure set forth in [J.C. Penney Cas. Ins. Co. v. Com. Dept. of Ins., 43 Pa.Cmwlth. 360, 402 A.2d 558 (1979) ]. Therefore, we hold that the court’s dismissal ... was proper with regard to the [UIPA claim].

Hardy, 365 Pa.Super. at 220, 529 A.2d at 478.

Since the enactment of 42 Pa.C.S.A. § 8371, neither this court nor the Pennsylvania Supreme Court has spoken to this precise issue. Section 8371 does not define the term “bad faith.” To ascertain the meaning of “bad faith” as it is used in Section 8371, therefore, the courts must look to either Pennsylvania case law interpreting and applying the statute and/or to the Pennsylvania rules of statutory construction. In this case, we examine the latter.

Whenever possible, we must interpret a statute according to the plain meaning of its language. In that light, the rules of statutory construction provide, in part, that “words and phrases shall be construed according to the rules of grammar and according to their common and approved usage.” 1 Pa.C.S.A. § 1903; Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986). In the insurance context, the term “bad faith” has acquired a universally acknowledged meaning:

Insurance. “Bad faith” on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.

Black’s Law Dictionary 139 (6th ed. 1990) (citations omitted). See also 3 Appleman, Insurance Law & Practice § 1612 at 368 (1967 & Supp.1991) (bad faith means a frivolous or unfounded refusal to pay, lack of good faith investigation into fact, and failure to communicate with the claimant).

The parameters of Section 8371 may also be discerned by reference to analogous Pennsylvania insurance law. Specifically, “when the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters ... (5) ... other statutes upon the same or similar subjects.” 1 Pa.C.S.A. § 1921. Section 1171.5 of the UIPA defines unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. Particularly, and as noted above, Section 1171.5(a)(10)(vii) prohibits insurers from “Compelling persons to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts due and ultimately recovered in actions brought by such persons.” 40 P.S. § 1171.5(a)(10)(vii); While the UIPA does not specifically refer to an insurer’s “bad faith,” the Supreme Court of Pennsylvania has utilized that term to describe conduct within the UIPA’s reach. See D’Ambrosio, supra.

Although the trial court lacks the requisite jurisdiction to impose sanctions under the various provisions of the UIPA and insurance regulations, we find that the rules of statutory construction permit a trial court to consider, either sua sponte or upon the request of a party, the alleged conduct constituting violations of the UIPA or the regulations in determining whether an insurer, like Nationwide, acted in “bad faith.” See MacFarland v. United States Fid. & Guar. Co., 818 F.Supp. 108 (E.D.Pa.1993) (holding that the alleged conduct constituting violations of the UIPA and the regulations can be considered in determining whether the insurer acted in bad faith under 42 Pa.C.S.A. § 8371); Rottmund v. Continental Assurance Co., 813 F.Supp. 1104 (E.D.Pa.1992) (holding that courts may look to other statutes upon the same or similar subjects to define bad faith under 42 Pa.C.S.A. § 8371); Coyne v. Allstate Ins. Co., 771 F.Supp. 673 (E.D.Pa.1991) (holding that provisions of the UIPA can be utilized to describe conduct constituting bad faith).

This court offers no opinion as to whether Nationwide, in fact, committed bad faith by withholding payment pending a requested determination of the actual cash value of the loss. This decision, therefore, is limited to the jurisdictional, albeit unwarranted, concerns of the trial court. We find that a trial court, when evaluating a Section 8371 petition or motion for costs and/or counsel fees for the “bad faith” of an insurer, may look to: (1) other cases construing the statute and the law of “bad faith” generally; (2) the plain meaning of the term(s) used in the statute; and/or (3) other statutes upon the same or similar subjects (like the UIPA in this case), MacFarland, supra, Rottmund, supra, and Coyne, supra. The fact that Alalia makes reference to a provision of the UIPA to illustrate the alleged bad faith conduct of Nationwide does not divest the trial court of its jurisdiction. The trial court, therefore, erred in finding that it lacked jurisdiction to hear the matter. Stahli, supra; Reuter, supra; Porter, supra.

Order vacated and case remanded for proceedings consistent with this opinion.

JOHNSON, J., concurs in the result.

      . Nationwide’s appraiser concurred with the umpire's award insofar as it reflected the replacement cost of the damage, but refused to pay the total award until, and • only if, Alalia commenced repairing and/or replacing the damaged property, as per the requirements of the insurance policy. Nationwide then requested that, in addition to the replacement cost award entered by the umpire, the appraisers submit actual cash value (ACV) figures to the umpire. In the meantime, Nationwide paid $13,253.94 to Alalia to bring the total advanced to $43,253.94, the ACV set by Nationwide’s appraiser less the $1,000.00 deductible.

      . This order is final and appealable because Alalia’s petition to confirm the umpire’s award was rendered moot by Nationwide’s subsequent payment of the balance of the award. The sole remaining issue before the trial court, therefore, concerned Alalia’s request for counsel fees. We, therefore, limit our review to the trial court's order denying/dismissing the same.

      . Following question four of its Statement of Questions Involved, Alalia acknowledges that the trial court did not reach the merits of its motion for counsel fees, finding instead that it lacked jurisdiction to examine the instant case in light of alleged UIPA violations.

      . Evidence that Alalia orally requested counsel fees is contained in the certified copy of the docket entries, as follows: "[pjetitioners’ (Alalia's) request for counsel fees ... is hereby denied.” (emphasis added).


author: TAMILIA, Judge:

text:
    646 A.2d 1233
    In re Anderson LOVE. Appeal of Anderson LOVE.
    Superior Court of Pennsylvania.
    Submitted July 11, 1994.
    Filed Aug. 26, 1994.

      Raymond D. Roberts, Norristown, for appellant.
    Patricia E. Coonahan, Asst. Dist. Atty., Norristown, for Com., participating party.

      Before OLSZEWSKI, TAMILIA and HOFFMAN, JJ.
   TAMILIA, Judge:

Anderson Love, a juvenile, appeals from the Order of Disposition entered December 29, 1993 following an adjudication of delinquency after appellant was found guilty of rape, criminal attempt, indecent sexual intercourse, criminal coercion, indecent assault and indecent exposure. Following disposition hearings of December 27, 1993 and December 29, 1993, appellant was committed to the Youth Development Center in Bensalem for an indeterminate period of time.

On August 23, 1993, at approximately 4:30 a.m., Anderson Love forced entry into a single family residence in the Roslyn section of Abington Township. Appellant awoke the victim, a 33-year old single female who was the only occupant, and repeatedly raped her at knife-point for approximately one hour. Shortly after the incident, the victim was taken to police headquarters, where a graphic artist officer made a composite sketch from her description of the assailant, which was subsequently disseminated to area law enforcement. Several days later, the police detained appellant pursuant to the composite sketch and photographed him for identification purposes. The victim was shown two photo arrays, one on August 24, 1993, which did not contain a photograph of appellant and one on August 26, 1993, which did contain appellant’s photograph. The victim positively identified appellant in the second array.

On appeal, appellant first argues the hearing judge erred by not suppressing the out-of-court photograph array identification of appellant as it was unduly suggestive. Detective Webb completed the array of eight photographs of young African American males based on a picture he took of appellant when he was arrested. Appellant contends his picture is the only one that fits the victim’s actual description. She described her assailant as a black male, medium complexion, young, real short hair and no facial, chest or back hair. However, at least four of the photographs were of young males with high African box cuts, at least two of the males in the photo array had beards and facial hair and two males had dark complexions and some had fair complexions. Moreover, the detective told the victim there was a suspect in custody and she did not immediately select appellant from the array but only did so after a period of time of being allegedly “prodded” by the detective. Appellant contends this entire procedure was a denial of due process due to the unnecessary suggestive confrontation procedure which resulted in both unreliable out-of-court and in-court identifications.

In In the Interest of McElrath v. Commonwealth, 405 Pa.Super. 431, 592 A.2d 740 (1991), this Court set forth the standard to review the denial of a motion to suppress evidence.

In reviewing the denial of a motion to suppress evidence, an appellate court has a duty to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, an appellate court considers only the evidence of the prosecution’s witnesses and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the record as a whole. When the evidence viewed in this manner supports the factual finding of the suppression court, we will reverse only if there is an error in the legal conclusion drawn from those factual findings.

Id. at 436-37, 592 A.2d at 742 (citations omitted).

The hearing judge, after reviewing the evidence and testimony, made the following factual findings as to the photo array:

As far as the photo array, I have examined the photo array, the photo composite. I think it’s a good composite. I think they’re all taken — all black males, approximately the same age. There are no distinguishing features concerning the clothes. Not all of their hair is the same length, I agree. Some hair is shorter than others, and not all of the complexions are identical. But as I look at, certainly, two, three and four, and eight, the complexions are about the same in there. But when I look at all those pictures in relation to the subject, who is number 4, I think it’s a good photo array, and it’s not at all suggestive.
They were all taken with a Polaroid camera, all with the same kinds of background, all black males, approximately the same age, all relatively short hair, although some hair is longer than others. I agree. And most of the ones in the exhibit I am looking at, there is no facial hair. There may be in seven, and there may be in one, Pm not even sure. But when you look at the facial features, it’s a good composite. And nothing is to say that a person who who [sic] may not have had facial hair on the evening in question may have had facial hair when the the [sic] picture was taken. I think the important thing to consider is not how much all the pictures resemble a description given by an alleged victim, but whether there is anything in the composite to distinguish the person who is identified, or suggest the person was identified, as opposed to the other seven pictures in the composite. And there is nothing at all unduly suggestive in this composite, as far as Pm concerned.

(N.T., Vol. I, 11/30/93, pp. 66-67.) The hearing judge took into account the various distinguishable characteristics of the individuals photographed. However, he also considered they were all taken with a Polaroid camera, all with the same background, all black males, all had relatively short hair and all approximately the same age. Accordingly, with respect to the selection of photographs, we find the court’s finding it was not unduly suggestive is clearly supported by the evidence. Commonwealth v. Nelson, 399 Pa.Super. 618, 582 A,2d 1115 (1990) (Photo array to robbery victim not unduly suggestive where there were at least eight black males, similar in age, skin complexion, hair and general appearance and no identification marks on photos); Commonwealth v. Blassingale, 398 Pa.Super. 379, 581 A.2d 183 (1990) (Photo array not unduly suggestive where photos were of eight black males, ages 18 to 30, and in addition to appellant only two others had unusual eye characteristics).

Contrary to appellant’s contention, there was no evidence of “goading” on the part of Detective Webb (see N.T., p. 68). Moreover, there is no merit to the argument the identification process was unduly suggestive because the photos did not match the victim’s description of her assailant. See Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987). We also find no merit to appellant’s contention this out-of-court identification so tainted the in-court identification that it. should be treated as worthless. See Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).

Appellant next argues the out-of-court photo array identification should have been suppressed since he did not have counsel present during the post-arrest photo array. Appellant contends Pennsylvania law requires a right to counsel at a post-arrest photo display. This Court and the Commonwealth do not contest the right to counsel attaches at the time of arrest. However, appellant has provided no evidence in his brief that he had been arrested prior to the photo identification process. The court properly found appellant was not in custody at the time of the photo array. Detective Webb testified appellant was only being “interviewed” as a “possible suspect” and voluntarily came to the poliee station at which point his father was notified and came in as well. An arrest occurs with any act that indicates an intention to take the person into custody and to subject him to actual control and will of the person making the arrest. Commonwealth v. Miller, 426 Pa.Super. 410, 627 A.2d 741 (1993). Presently, there is no evidence appellant was placed under arrest. In fact, there are no indicia which would lead a reasonable person to believe appellant had been arrested at the time of the photo array. Id. (Test of when a person is arrested requires an objective view). Therefore, we find the hearing judge correctly determined appellant had no right to counsel during the photo array identification as it occurred prior to his arrest. See Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970).

Thirdly, appellant contends the court erred in not suppressing statements he made without the advice of counsel or an interested adult being present. It was the testimony of Officers O’Conner and Dalton they went to the residence of Pat Sands, who is a neighbor of the victim and a friend of appellant’s with whom he was visiting, at 1:00 a.m. on August 26, 1993. Appellant contends the officers questioned him and elicited certain statements pertaining to the rape. In fact, appellant, relying on the testimony of Pat Sands, contends Officer Dalton shined a flashlight in his face and stated, “You did it, didn’t you?” All of this, appellant argues, was performed without advising appellant of his right to counsel or right to consult with an interested adult.

In a juvenile proceeding, the hearing judge sits as the finder-of-fact. In a case such as this, where the credibility of witnesses is at issue, the weight to be assigned the testimony of the witnesses is within the exclusive province of the fact-finder. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). The hearing judge, as sole assessor of credibility, may believe all, part or none of the evidence presented. Commonwealth v. Blystone, 421 Pa.Super. 167, 617 A.2d 778 (1992). The hearing judge’s findings will not be reversed by this Court unless it appears that he has clearly abused his discretion or committed an error of law. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 556 A.2d 819 (1989).

The hearing judge, after reviewing the evidence, chose to believe the testimonies of Officers O’Conner and Dalton (N.T., pp. 64-66). The evidence reveals Pat Sands, with appellant present, invited the officers into his house. The conversation was friendly and did not involve any questioning relating to the rape. Appellant was free to move about the house and was at no time placed under arrest or questioned in any way. The officers simply showed the boys the sketch and discussed general neighborhood happenings. The officers left the house informing appellant he may be contacted by detectives the next day. Since appellant did not undergo any “custodial interrogation” we find the officers did not err in failing to give a Miranda warning. Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987). Accordingly, the hearing judge did not err in failing to suppress any statements made by appellant. Regardless, this argument is without merit as any statements made to the officers were immaterial to appellant’s conviction. The court’s conclusions were based on the victim’s testimony and positive identification of appellant, the strong FBI corroboration testimony and the “unimpressive” alibi defense (N.T., pp. 155-159). Thus, any error in admitting appellant’s statements- to the police is harmless beyond a reasonable doubt. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).

Finally, appellant contends the court erred by ordering an unduly harsh period of commitment and by not affording him the opportunity to examine certain witnesses concerning the disposition recommendations made by those witnesses.

The Juvenile Act is clear that a delinquent’s disposition is a duty vested in the discretion of the adjudicating juvenile court. 42 Pa.C.S. § 6352. This Court will not disturb a sentence absent a manifest abuse of discretion. Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989). Beyond a bald assertion in his argument caption, appellant failed to advance any argument to support his contention the disposition was unduly harsh for such a crime. As such, we find no merit to his allegation. Id.

This Court also finds no merit to appellant’s alleged error relating to the dispositive process, which was within the Juvenile Court’s broad discretion. 42 Pa.C.S. §§ 6301(b)(2) and 6352(a)(3). At the hearing, the court considered the reports of the probation officer, the Youth Center and the psychological and psychiatric evaluations which satisfies the due process requirements of 42 Pa.C.S. § 6301(b)(4). Moreover, the court specifically provided appellant an opportunity to present testimony at a later time if he disagreed with the placement facility selected. Accordingly, appellant was afforded a proper dispositional hearing and his commitment was not unduly harsh.

Disposition affirmed.

      . § 6353. Limitation on and change in place of commitment
      (a) General rule. — No child shall initially be committed to an institution for a period longer than four years or a period longer than he could have been sentenced by the court if he had been convicted of the same offense as an adult, whichever is less. The initial commitment may be extended for a similar period of time, or modified, if the court finds after hearing that the extension or modification will effectuate the original purpose for which the order was entered. The child shall have notice of the extension or modification hearing and shall be given an opportunity to be heard. The committing court shall review each commitment every six months and shall hold a disposition review hearing at least every nine months.
      At any rate, the juvenile may not be institutionalized beyond his twenty-first birthday.

      . Throughout this Opinion, we refer to the “hearing judge” instead of the "trial judge” as pursuant to the Juvenile Act, a proceeding in Juvenile Court is a hearing and not a trial. See 42 Pa.C.S. § 6335.

      . Since appellant does not specify which statements should have been suppressed, this Court cannot address them in any specific detail.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . As detailed in footnote one, supra, the discretion of the Juvenile Court in implementing a disposition is broad, it is flexible and the Juvenile Court has considerable power to review and modify the commitment, taking into account the rehabilitative progress or lack of it of the juvenile. Without extreme specificity as to the error by the court in imposing the commitment, there can be no basis for setting aside the disposition. In any event, the Juvenile Court, by operation of law, loses jurisdiction of the juvenile at his twenty-first birthday.


author: POPOVICH, Judge: OLSZEWSKI, Judge,

text:
    646 A.2d 1238
    Stephanie D. ZEARFOSS, Appellee, v. Michael FRATTAROLI, Appellant.
    Superior Court of Pennsylvania.
    Argued June 22, 1994.
    Filed Aug. 19, 1994.

      Charles P. Buchanio, Lebanon, for appellant.
    Samuel A. Kline, Lebanon, for appellee.
    Before OLSZEWSKI, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This case involves an appeal from the order of the Court of Common Pleas of Lebanon County granting a motion for summary judgment in favor of the plaintiff, Stephanie Zearfoss, and against the defendant, Michael Frattaroli. We reverse.

The standard of review in assessing the grant of a motion for summary judgment requires a court to view the record (including the pleadings and depositions, if any, answers to interrogatories, admissions on file and supporting affidavits) in a light most favorable to the non-moving party. See McDonald v. Marriott Corp., 388 Pa.Super. 121, 564 A.2d 1296 (1989). Judgment shall be entered if the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b).

The plaintiff filed a complaint in April of 1992 against the defendant for support of Larissa Dawn Zearfoss (born January 13, 1981), alleged to be the defendant’s child born out of wedlock.

The defendant filed an Answer and New Matter denying paternity and requesting a blood test (H.L.A.). Further, the defendant filed a Motion For Discovery And Request For Trial By Jury, wherein he alleged that he was never the spouse of the plaintiff nor did he reside with her during the period of conception. Additionally, the defendant asserted he was not listed on any birth certificate as the child’s father and the plaintiff “indicated both to the Hershey Medical Center (the hospital at which the child was born) and to the Office of Public Assistance for the County of Lebanon, that another named individual was the father of the minor child.... ” Paragraph 6. Lastly, statements of another person being the putative father were made by the plaintiff at or near the time of the minor child’s birth. Id. at 7.

In reply to the defendant’s Motion, the plaintiff denied the defendant’s assertions of non-cohabitation, non-paternity and naming individuals other than the defendant as the father. The plaintiff also insisted that the child was baptized in the defendant’s church and his name appears on the baptismal certificate as the father.

By order of court dated September 29,1992, a request for a jury trial and discovery was granted, with all parties agreeing to respond to interrogatories. The defendant was to have access to reports of the Domestic Relations Office (from the Department of Public Assistance) and the Hershey Medical Center regarding the birth.

Each party filed answers to the other’s interrogatories. The plaintiff indicated that she first had sexual intercourse with the defendant in late 1979; prior to conception (calculated to be Memorial Day weekend of 1980) “Plaintiff only had sexual intercourse with Defendant and only Defendant for a period of approximately 2 years prior to conception of their daughter”; for approximately 1 year after the birth of the child the plaintiff and defendant lived together and the defendant supported both plaintiff and child; and the plaintiff denied having sex with the defendant’s brother in 1980 or admitting the same to the defendant following the birth of the child. See Plaintiffs Answers to Defendant’s Interrogatories at Nos. 7, 15, 28, 38 & 39.

In contrast, the defendant’s interrogatories disclosed that he first had sexual intercourse with the plaintiff in late 1979, but the two “were not seeing each other” by December of 1979. The two reunited mid-July on through the balance of 1980.

The defendant believed he was the father of the child because the plaintiffs “projected delivery date [w]as April of 1981.” In fact, the plaintiff and defendant lived together from October 1, 1980, until the birth of the child on January 13, 1981. Thereafter, the plaintiff and child returned to reside with her parents. See Defendant’s Answers to Plaintiffs Interrogatories at Nos. 6, 8, 14 & 15.

It was not until after the birth of the child that the defendant claimed his brother told him he had sexual intercourse with the plaintiff during 1980. Id. at 23 & 25. Defendant also indicated that while the plaintiff and child lived with him, he supported the child “indirectly.” Id. at 32. However, he denied that he had the child baptized. Id. at 35.

By motion and rule to show cause, the plaintiffs request for genetic testing (D.N.A.) was granted, despite the defendant’s objection that H.L.A. blood testing had already been performed. Further, the court authorized a second set of D.N.A. tests when the first proved incomplete.

Interestingly, in the defendant’s Pre-Trial Conference Memorandum there is mention (via Exhibits “D” & “E”— Child Support Action Notice (dated 4/16/81) & Lebanon County’s Domestic Relations Assistance Form (dated 3/2/81), respectively) that the plaintiff “could not name/identify father of the child.” Likewise, Exhibit “C” in the same Memorandum (captioned Application for Support for plaintiff and child (dated 2/11/81) contained the remarks: “client was seeing 3 different men at same time while living in Erie, Pa.”)

Next, the court continued trial to allow H.L.A. blood testing of the defendant’s brother (Terrance A. Frattaroli). The results excluded the brother as the child’s father. What followed was the plaintiffs Motion for Summary Judgment, wherein it was alleged that the defendant had denied paternity but, albeit refusing to acknowledge the authenticity of the first and second blood tests (showing a probability of fatherhood to be 99.86% (H.L.A.) and 99.89% (D.N.A.), respectively), stipulated to the admission of the third test (D.N.A., showing a probability of paternity of 99.99%).

The plaintiff argued that, inasmuch as the appellant’s only defense (set forth in answer to Plaintiffs Interrogatories at Nos. 22-25) had been rebutted with the exclusion of his brother as the father of the child, “there [wa]s no genuine issue as to the material fact, namely, that Defendant [wa]s the biological father of Larissa Dawn Zearfoss.... ” The court agreed and entered judgment in favor of the plaintiff. This appeal followed raising two issues:

1. THE ENTIRE RECORD AVAILABLE FOR THE LOWER COURT’S RULING ADEQUATELY RAISED THE APPELLANT’S DEFENSE TO THE ISSUE OF PATERNITY DESPITE THE H.L.A. AND D.N.A. TEST RESULTS;
2. Pa.R.C.P. NO. 1910.15(b) MANDATES A TRIAL ON THE ISSUE OF PATERNITY IN THE ABSENCE OF APPELLANT’S ACKNOWLEDGMENT OF PATERNITY.

Appellant’s Brief at 6 (Emphasis in original).

In addressing the first issue, we note that blood testing (with regard to paternity) is not conclusive in this Commonwealth. It is but one factor to be weighed in the totality of the evidence presented on the question of paternity. See Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527, 529 (1986) (blood test result of 99.99% is not conclusive of paternity); Mastromatteo v. Harkins, 419 Pa.Super. 329, 615 A.2d 390 (1992) (semble); Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562, 565 & n. 6 (1983) (semble).

For the court to imply otherwise, be it because of the stipulation to the second D.N.A. test by the defendant (probability of paternity being 99.99%) allegedly leaving no genuine issue of material fact to be resolved, is presumptive and refuted by the record.

For example, the court indicates that the defendant’s “only raised defense” appears in his Answer — “he is not the father of the child” — and is of no consequence because he alleges “in his answers to interrogatories that his brother, Terrance Frattaroli, is the child’s father, but blood tests subsequently excluded his brother as the father. * * * In summary, Defendant will not be able to offer a defense to defeat Plaintiffs prima facie case; thus, the issue of paternity is not a genuine issue of material fact.” Court Opinion, 9/30/93 at 5. We disagree.

When a court attempts to substitute its assessment of the facts for that of a jury, the courts of appeal in this jurisdiction are quick to draw in the reins of the judiciary in an area reserved exclusively for a trier-of-fact to decide. For instance, in Smith, supra, our Supreme Court reversed this Court’s affirmance of a Common Pleas Court granting a natural mother/appellee’s post-trial motion for a new trial.

In Smith, the issue was one of the appellant/Shaffer being the biological father of an infant born to the appellee. At trial, the appellee testified that she had sex only with the appellant during the possible period of conception. The appellee’s expert, a hematologist, testified that the H.L.A. blood tests established a 99.99% probability that the appellant was the biological father.

The appellant denied having sex with the appellee and he produced the appellee’s brother to testify that he (appellee’s brother) saw appellee’s stepfather fondle appellee during the conception period and was present when appellee’s mother took appellee and her sisters to truck stops and returned with money. The jury rendered a verdict for the appellant.

The court, sitting en banc, granted the appellee a new trial on the ground that, inter alia, “... the strong scientific evidence ... supports] the [appellee’s] claim and the lack of credible .testimony to the contrary, [indicates] the award of a new trial is imperative.” On appeal froto this Court’s affirmance of the court en banc’s award of a new trial, the Supreme Court reversed and, in doing so, held that the court en banc had abused its discretion:

In the instant case, it is apparent that the court en banc “invaded the exclusive domain of the jury,” and “exceeded the limits of judicial discretion.” The testimony presented by the parties and the witnesses for appellant and appellee was in direct conflict. Appellee’s claim of paternity was supported by her testimony and the opinion of her expert witness. Appellee’s denial of paternity was supported by his testimony and the testimony of his witness, [appellee’s brother], “The determination of credibility is solely for the trier of fact.” Adoption of S.H., 476 Pa. 608, 615, 383 A.2d 529, 532 (1978). The jury in the instant case, by rendering a verdict for appellant, obviously resolved the credibility of the witnesses and the conflict in testimony of the witnesses '.and the conflict in testimony in favor of appellant, as was its prerogative. The conclusion of the court en banc, i.e., that the verdict was against the weight of the evidence, was based on its reassessment of the credibility of the witnesses, a matter exclusively within the province of the jury.
The court en banc’s reassessment of credibility was obviously influenced by the weight it placed upon the opinion of appellee’s expert witness (99.99% probability that appellant was the father), since that court found the award of a new trial was imperative “in light of the strong scientific evidence supporting the [appellee’s] claim and the lack of credible testimony to the contrary----” * * * It was improper for the court to elevate the opinion of the expert witness to such lofty heights in light of the jury’s finding that appellant’s and his witness’ testimony were credible. As this Court stated in Tinicum Real Estate Holding Co. v. Commonwealth Department of Transportation, 480 Pa. 220, 232, 389 A.2d 1034, 1040 (1978), “in determining the facts the jury has the right to believe all, some of, or none of the experts’ testimony. Furthermore, it was the jury’s duty to consider all of the facts and circumstances established by the trial evidence.. .. ”

... the general rule in this Commonwealth [is] that expert opinion testimony is not conclusive and must be considered in conjunction with all of the evidence introduced at trial, HLA tests are not conclusive of paternity.

511 Pa. at 426, 515 A.2d at 528-29 (Footnote omitted; citations omitted in part; emphasis added in part).

Consistent with the precepts recited in Smith, this Court in Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985), upheld a court’s ruling that the appellant was the biological father of the appellee’s daughter.

In Tyler, the appellee testified that she met the appellant on July 25, 1980, and had sex with him that night at his home. She also admitted having sex from April to July of 1980 with another man. In turn, the appellant denied having sex with the appellee at his home on July 25th because his girlfriend and their daughter were living there. The appellant claimed he did not meet the appellee until October of 1980. Further, the appellee testified that she lied when she told the appellant that she had used contraceptives, and that she had told a friend of the appellant that another man may have fathered the child.

H.L.A. blood tests were conducted and the appellant stipulated to the results as some evidence of paternity. However, at the close of the appellee’s case, the appellant sought a dismissal on the ground that the Commonwealth had not presented any statistical evidence, in the form of expert testimony, to explain the test results. The motion was denied and the court found the appellant to be the father of appellee’s child.

On appeal, the appellant challenged the finding of paternity on various grounds, one of which was the court’s failure to call expert witnesses to interpret (H.L.A.) blood tests conducted pursuant to the predecessor to 23 Pa.C.S.A. § 5104(d), i.e., 42 Pa.C.S.A. § 6134. In disposing of this contention this Court made remarks relevant to the case at bar; to-wit:

... we disagree with the appellant that Section 6134 requires the court to call the described experts in all cases. First, the Act itself allows paternity determinations tó be made without blood tests. Section 6133 [now found at 23 Pa.C.S.A. § 5104(c) ] states that “[i]f any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require” (emphasis added). See also Smith v. Beard, 326 Pa.Super. 95, 473 A.2d 625 (1984). In addition, expert testimony is not the sole or paramount form of evidence used in paternity cases. Section 6123(b)(3), governing the use of blood tests in criminal proceedings, allows the court to direct a verdict for the defendant “upon the conclusions of all the experts under the provisions of Section 6136 [now found at 23 Pa.C.S.A. § 5104(f) ] relating to effect of test results, otherwise the case shall be submitted for determination upon all the evidence” (emphasis added). Section 6136, in turn, provides that “[i]f the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.” (emphasis added).
These sections ... demonstrate the Legislature’s second intent, that the trier of fact decide paternity questions on all the evidence, not just on the pronouncements of experts. * * * Logically, a “trier of fact” would be unnecessary in paternity cases if the verdicts were to be reached by the witnesses.

344 Pa.Super. at 85-87, 496 A.2d at 20-21 (Emphasis added in part).

What is to be gleaned from the pronouncements of Smith and Tyler is that: (1) blood tests are not conclusive evidence of paternity, they are but one of the fibers which go into making the pattern of evidence either proving or disproving paternity; and (2) it is within the province of the trier-of-fact to believe all, some or none of the evidence presented. This translates into the finder-of-fact (be it jury or judge) having it within its prerogative to hold for the putative father/defendant and against the natural mother/plaintiff in a paternity action, regardless of the introduction of one or multiple blood tests (be they of the H.L.A. or D.N.A. variety) establishing a 99.99% probability of paternity, if the other facts are supportive of such a verdict.

If such were not the case, there would be no need for a hearing to assess the various versions proffered by the parties surrounding the events leading to the birth of a child alleged to be the defendant’s. Rather, all one would have to do is submit the results of the blood test(s) performed on the parties and anything over the 99 percentile level would warrant a finding of paternity against the contestant/defendant. However, this is not the law, at least in this Commonwealth. As stated by this Court in Tyler:

... the trier of fact decide[s] paternity questions on all the evidence, not just the pronouncements of experts.... Logically, a “trier of fact” would be unnecessary in paternity cases if the verdicts were to be reached by the witnesses.

344 Pa.Super. at 87, 496 A.2d at 21.

It still remains the finder-of-fact’s duty to evaluate all of the evidence (e.g., expert testimony on test results or the admission of test results stipulated to by the parties), which includes the testimonial accounts of the events surrounding the question of paternity offered by the lay-witnesses and/or the parties to the suit.

At bar, the record discloses that the plaintiff had sex with the defendant during the possible period of conception (Memorial Day weekend, 1980) and, exclusively, for two (2) years preceding the birth of the child on January 13, 1981. See Plaintiffs Answers to Defendant’s Interrogatories at Nos. 15 & 23. She also possesses the results of the second D.N.A. test, stipulated to by the defendant, evidencing a 99.99% probability of paternity linking the child to the defendant.

On the other hand, the defendant sets forth in his pleadings and answers to interrogatories that he was not seeing the plaintiff during the possible period of conception. It was not until mid-July of 1980 that their relationship re-commenced after a hiatus from December of 1979.

Moreover, the defendant produced three (3) documents in his pre-trial memorandum (relating to the plaintiffs efforts to secure public assistance) prepared by disinterested third-parties after the birth of the child (between March and April of 1981) revealing that the plaintiff had advised each that she could not identify the father of the child and that she had been cohabitating with three (3) men at the time while living in Erie, Pennsylvania. See Defendant’s Answer to the Plaintiffs Interrogatories at Nos. 41 & 42.

To summarize, this Court finds that the court below abused its discretion in holding that there was no genuine issue of material fact as to paternity and that, the plaintiff was entitled to judgment as a matter of law. We find to the contrary as the presence of the D.N.A. test results do not neutralize the defendant’s denial of sexual intercourse with the plaintiff during the period of conception and the proposed production of witnesses (e.g., Ms. Connie Cokely, Lebanon County Public Assistance and Ms. Mary Musser, Lebanon County Domestic Relations Office) to show that immediately after the child’s birth (January 13. 1981) the plaintiff gave information on two separate occasions (in March and April of 1981) that she could not name the father of the child and that she was living with three men (as of 2/11/81) in Erie, Pennsylvania, when she indicated that she had lived with the defendant for 1 year during the same period after the birth of the child.

These matters all weigh on the credibility of the plaintiff, an area the defendant should be permitted to explore before a trier-of-fact and should not be discounted in the face of D.N.A. testing or the exclusion of his brother as the biological father of the child. To accomplish this objective, a request having been made by and granted to the defendant for a jury trial by court order dated September 29, 1992, we reverse the order entering judgment in favor of the plaintiff and remand for a continuation of the case through the judicial process within the framework of a jury trial. See Pa.R.Civ.P. 1910.15(b).

Order reversed, case remanded, and jurisdiction is relinquished.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in my esteemed colleague’s conclusion that summary judgment is inappropriate in this case even if both Human Leukocyte Antigen (HLA) and Deoxyribonucleic Acid (DNA) tests indicate that the putative father is, in all likelihood, the biological father of the child. I write separately to make the following observation.

It seems to me that the majority is somewhat conclusory in its assertion that “the factfinder (be it jury or judge) [has] it within its prerogative to hold for the putative father/defendant ... regardless of the introduction of one or multiple blood tests (be they of the H.L.A. or D.N.A. variety) establishing a 99.99% probability of paternity, if the other facts are supportive of such a verdict.” Majority opinion at 575 (emphasis omitted). This statement is premised on the proposition that HLA tests are not conclusive of paternity. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986); Tyler v. King, 344 Pa.Super. 78. 496 A.2d 16 (1985). Although I cannot dispute that HLA tests alone cannot deprive the jury of its power to decide paternity, it should not follow ipso facto that a DNA test which puts a putative father’s probability of fatherhood over 99.99% should be treated identically.

Our Court, not to mention legion others, has recognized that DNA tests are far more accurate than HLA tests.

Genetic tests [such as DNA] differ significantly from the blood cell antigen typing performed in the instant case. Genetic evidence provides direct evidence of the extent to which an alleged father and child actually share genetic material. From the results of genetic tests, adequately and accurately performed, it is possible to determine that a' particular man did in fact father a particular child.
An affirmative finding of paternity with the same certainty cannot be obtained from blood antigen tests, such as were performed in the instant case. Typing red and white blood cell antigens reveals the extent to which an alleged father and child share selected cellular, biomechanical properties. From the results of blood cell antigen tests it is sometimes possible to deduce, with a high degree of reliability, that an alleged father is not the biological father. It is never possible from the same tests, however, to deduce with the same certainty that a particular man fathered a particular child.

Stahli v. Wittman, 412 Pa.Super. 281, 603 A.2d 583, alloc. denied, 533 Pa. 601, 617 A.2d 1275 (1992). DNA tests have the potential for being highly accurate because each individual’s DNA is unique, and thus an acceptable “match” of DNA strands between a putative father and child can exclude a much larger population of potential fathers than does an HLA test. See E. Donald Shapiro, Stewart Refler, and Claudia Psome, The DNA Paternity Test: Legislating the Future Paternity Action, 7 Journal of Law and Health 1 (1993) (hereinafter “Paternity Test”); see also Mastromatteo v. Harkins, 419 Pa.Super. 329, 335-36, 615 A.2d 390, 393 (1992) (DNA paternity evidence can more accurately identify putative father as biological father and is thus not cumulative of HLA tests), alloc. denied, 535 Pa. 648, 633 A.2d 152 (1993).

Our legislature has also recognized that genetic testing is more accurate than HLA blood typing. While results of a DNA test are considered prima facie proof of parentage, 23 Pa.C.S.A. § 4343(c)(2), the same is not true of HLA tests. As we stated in Stahli:

Blood cell typing provides some evidence from which a factfinder may make an affirmative finding of paternity. However, the result is not prima facie evidence of paternity. Before the result of a blood test becomes probative of affirmative paternity, the trier of fact must be able to conclude that the mother and alleged father have engaged in the reproductive act at the relevant time.

Stahli, supra at 288, 603 A.2d at 586. Thus, since DNA by law is accorded more evidentiary weight than HLA, it would seem that DNA is not simply another “blood test” which under Smith v. Shaffer and Tyler v. King is just part of the evidence of paternity.

Indeed, one court has determined that when DNA testing proves with over a 99.99% degree of probability that the putative father is the biological father, a trial is unnecessary. In Debra L. v. William J., 191 A.D.2d 558, 559, 594 N.Y.S.2d 810, 811 (1993), DNA and HLA tests resulted in a 99.99 + % probability that the putative father was the biological father. The trial court accepted father’s testimony that he did not have intercourse with mother, and found for father. The appellate court reversed, stating that

in view of his prior sexual contact with the mother, and his physical access to her ..., the unchallenged and overwhelming proof of paternity contained in the HLA and DNA test results cause his denials to pale to the point of transparency and are simply not credible. [Father] should not be able to rely solely on a courtroom performance which consists of nothing more than bald denials to defeat objective scientific proof which has identified him as the father to a virtual certainty.

Id. at 559, 594 N.Y.S.2d at 811.

Although it is tempting to join the New York courts and hold that the DNA tests can be conclusive, I cannot yet go so far. In Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994), our Supreme Court questioned the validity of the theory which positively identifies a strand of DNA with a particular individual. For example, a positive identification is determined by the statistical probability of a coincidental match within a random population. The scientific community has yet to agree, however, on how the “random” population should actually be defined — certain genetic traits can appear with greater frequency depending on, among many other factors, the ethnic, geographic, and religious makeup of the chosen population. The Supreme Court thus held, under the relevancy standard for scientific evidence, that an expert can only opine that the DNA tests were performed and that it was “more likely than not” that DNA extracted from blood found at the crime scene could be identified with the defendant. Id. at 522-24, 640 A.2d at 402. It remains to be seen what effect Crews will have on a civil paternity suit, but suffice it to say that in Pennsylvania, our courts, along with the scientific community, are still grappling with the certainty of interpreting DNA test results. It would seem that taking the case away from the jury, therefore, is an unwise step.

My review of this case thus leaves me with the impression that DNA tests, when performed under the proper conditions, can be highly accurate and leave little or no doubt as to who actually fathered a particular child. But so long as the tests leave room for human error, the putative father should be given the opportunity to challenge the process by which the tests were conducted at trial. Moreover, until the statistical interpretation of the DNA results attains at least general acceptance within the scientific community, the putative father should be able to question the basis for an expert’s extrapolation. If these very probative results are to be given presumptive or conclusive weight — and that time may come soon — I believe that the legislature is the proper body to undertake that mission.

I concur.

      . It is as if the court dismisses out-of-hand the defendant’s version of the events leading to and after the birth of the minor child, a scenario which is at odds with the plaintiff’s account of what occurred during that same period of time. These factual disputes (e.g., access to the plaintiff during the period of conception is denied by the defendant) are matters for the trier-of-fact to resolve since, if believed, they would exonerate the defendant from liability.
      Blood tests, in and of themselves, are not definitive proof of paternity. On the contrary, all the facts must be assessed by the trier-of-fact, including but not limited to the test results, in reaching a decision on paternity. See Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985).

        . See 23 Pa.C.S.A. § 5104(f), which provides that if all experts agree that blood tests exclude a defendant as a possible father, the question of paternity is to be resolved accordingly. "Absent a legislatively enacted provision making positive blood tests also conclusive[, which the Legislature had the opportunity to do with the repeal of 42 Pa.C.S.A. § 6136 and replacing it with 23 Pa.C.S.A. § 5104(f) by the Act of December 19, 1990, P.L. 1240, No. 206], we must view them[, i.e., blood tests for paternity,] as only part of the evidence." See Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562, 565 (1983) (citing 42 Pa.C.S.A. § 6136, the predecessor to 23 Pa.C.S.A. § 5104(f)).

      . Yet, in the plaintiffs answer to the defendant’s interrogatories at No 37, the plaintiff denied having intercourse with three (3) different men during the period of conception in her application for public assistance. In Exhibit "A” attached to her answers to interrogatories, the plaintiff stated she lived with the defendant "for a period of one year” after the birth of the child in January of 1981.

      . The result would be the same had the defendant waived his right to a jury trial and elected to have his case heard by a judge.

      . The authors of Paternity Test argue that when a DNA test results in a possibility of paternity of at least 99.99%, which is the case here, a presumption that the putative father is the biological father should arise, rebuttable "only by clear and convincing evidence that the putative father was totally incapable of fathering the child, or that the putative father has an identical twin, or that the mother has engaged in multiple sexual relations during the time of conception." Id. at-. While our legislature has not, of course, adopted such a provision, it would surely be useful in a case such as this, where the DNA test results are overwhelming and the father’s defense is tenuous.

      . For a very lucid discussion of the issue, see William C. Thompson, "DNA Evidence in Criminal Law: New Developments,” Trial (August, 1994).