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February 4, 1985


Kelly, J.

The opinion of the court was delivered by: KELLY


 Presently before the court are the objections of Ella Williams ("plaintiff") to the Report and Recommendation ("Report") of Magistrate Naythons which upheld the final decision of the Secretary of Health and Human Services denying the plaintiff's claim for surviving child's benefits under the Social Security Act. After considerable review of the record compiled in the administrative proceedings and the legal conclusion which comprised the basis of the magistrate's decision, the court finds that the findings of fact upon which the Administrative Law Judge ("ALJ") based his decision were not "supported by substantial evidence". Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983). Summary Judgment on this matter will be granted in favor of the plaintiff.

 The plaintiff has taken exception to the report on two grounds. First, she argues that the ALJ overlooked a pertinent statute governing the key issue in this matter, namely, what evidentiary standards should be used to determine if her child was the result of the union between Floyd Briggs ("wage earner") and herself. Second, plaintiff contends that the magistrate was in error in not finding that the evidence presented was "clear and convincing" to show that the deceased wage earner fathered her child.

 A. The Law

 In reviewing the Secretary's decision, a district court should uphold a final determination of the Secretary to deny benefits if the findings of fact upon which the decision was based is supported by substantial evidence. Kent v. Schweiker, supra. Substantial evidence has been defined as "such relevant evidence as a reasoning mind might accept as adequate to support a conclusion." Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). The Social Security Act provides for insurance benefits to be paid to the children of a deceased "insured individual". 42 U.S.C. § 402(d)(1). The act further defines who is the child of the "insured individual". In this instance, since the child was born out-of-wedlock, the act directs the Secretary to examine the state law that would be applied to determine the devolution of intestate personal property by the courts of the state in which the deceased wage earner was domiciled at the time of his death. Mr. Briggs was domiciled in Pennsylvania. The Pennsylvania intestate law, 20 Pa. C.S.A. § 2107(c)(1)-(c)(3), prescribes three ways a person born out-of-wedlock may prove the identity of his father.

(c) Child of father - For purposes of descent by, from and through a person born out of wedlock, he shall be considered the child of his father when the identity of the father has been determined in any one of the following ways: . . .
(1) If the parents of a child born out of wedlock shall have married each other.
(2) If during the lifetime of the child, the father openly holds out the child to be his and receives the child into his home, or openly holds the child out to be his and provides support for the child which shall be determined by clear and convincing evidence.
(3) If there is clear and convincing evidence that the man was the father of the child, which may include a prior court determination of paternity.

 20 Pa.C.S.A. § 2107.

 Subsection (c)(1) is inapplicable to the facts at hand. The Secretary found that the plaintiff failed to present evidence that would satisfy the requirement of subsection (c)(2). Specifically, it was determined that (1) Floyd Briggs did not openly hold the child out to be his own within the community-at-large and (2) that Floyd Briggs did not provide support for the child.

 Section 2107(c)(2) requires that the plaintiff come forward with "clear and convincing evidence." The requirements of subsection (c)(2) are written in the conjunctive and were the plaintiff to prove only one of the two elements, then her claim must fail.

 The clear and convincing standard is more rigorous than a mere presumption of the evidence. Pennsylvania tribunals have yet to articulate a standard as to what constitutes clear and convincing evidence under § 2107(c)(2) and (c)(3); however, in passing upon this standard in interpreting estate law, the Supreme Court of Pennsylvania defined clear and convincing evidence as "testimony that is clear, direct, weighty and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In Re Trust Estate LaRocca, 411 Pa. 633, 640, 192 A.2d 409 (1963). Although it may appear from the court's language that a fact finder has virtually no room for doubt, the clear and convincing standard should not be equated with the beyond a ...

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