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RICKENBACH v. ALLENTOWN PORTLAND CEMENT CO. ET AL. (11/14/50)

November 14, 1950

RICKENBACH
v.
ALLENTOWN PORTLAND CEMENT CO. ET AL.



COUNSEL

Ralph C. Body, R. Solomon Bear, and Body, Muth, Rhoda & Stoudt, all of Reading, for appellant.

John D. Glase and Stevens & Lee, all of Reading, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Hirt

[ 167 Pa. Super. Page 580]

HIRT, Judge.

This action was brought by the widow of decedent, as claimant, who asserted the right to compensation on the ground that she was dependent upon her husband for support at the time of his death, although not then living with him.

It was admitted that decedent came to his death on June 23, 1947, from accidental injury in the course of his employment with defendant. The Board, however, also on undisputed testimony, affirmed the finding of the Referee 'that at the time of the decedent's accidental injury and death the claimant was not dependent upon him for support and had not been so dependent

[ 167 Pa. Super. Page 581]

    for the last ten years'. The Board, also made additional findings to the effect that decedent 'did not contribute to his wife's support for about ten years prior to his death' and that he 'repudiated his obligation to support claimant who acquiesced in the same.' Upon these findings the Board dismissed claimant's petition. The question of a wife's dependency is factual, Morris v. Yough Coal & Supply Co., 266 Pa. 216, 109 A. 914, and since the decision of the Board is against the claimant, the order in this case must be affirmed inasmuch as the findings of fact are consistent with each other and with the Board's conclusion, as evidenced by its order of dismissal. Only a capricious disregard of admitted facts could lead to a different result. Cf. Schrock v. Stonycreek Coal Co., 152 Pa. Super. 599, 33 A.2d 522.

Beginning with the amendment of § 307 of the Workmen's Compensation Law by the Act of June 21, 1939, P.L. 520, and under all subsequent amendments, 77 P.S. § 542,*fn1 a widow not living with her husband at the time of his death, to establish dependency, must show that she was then receiving from his a substantial portion of her support. In Binkley v. Stone & Webster Eng. Corp., 156 Pa. Super. 381, 40 A.2d 132, 134, we construed this statutory provision thus: 'Where the parties are not living together recovery under the amendment still rests upon proof of dependency. The amendment places the burden on a claimant to show not only legal liability for support, arising from the marital status, but actual dependency as well. Under ordinary circumstances where the parties are separated, dependency

[ 167 Pa. Super. Page 582]

    is evidenced by the receipt by the wife of at least some support from her husband; for a separation may be by consent under circumstances which amount to a repudiation of the husband's legal obligation acquiesced in by the wife, or the conduct of the wife may have been such as to relieve the husband from all liability for her support'.

Claimant and her husband were married in 1921. They separated on April 30, 1935 when he deserted her and their two young children. Thereafter claimant brought a proceeding against her husband for support. And on October 23, 1937, the Court of Quarter Sessions of Berks County made an order directing him to pay his wife $10 per month until March 11, 1938 and $12.50 per month thereafter. There was no appeal from the order nor was it ever rescinded or modified. Decedent complied with the order until he had paid a total of about $160 and then stopped payments entirely. After 1938 and up to the time of his death, he paid nothing to his wife for her support. In an effort to compel her husband to support her, claimant reported his delinquency on two occasions to the 'non-support office' of the county; the second and last complaint was made 'some time in 1939' and on each occasion her husband quit his job to avoid compliance with the support order. Claimant, ...


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