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YANOFCHICK v. STATE WORKMEN'S INS. FUND ET AL. (11/16/53)

November 16, 1953

YANOFCHICK
v.
STATE WORKMEN'S INS. FUND ET AL.



COUNSEL

Daniel J. Boyle, Tamaqua, John T. Pfeiffer, III, Tower City, Thomas Noonan, Mahanoy City, for appellant.

C. A. Whitehouse, Associate Counsel, Ralph H. Behney, Counsel, State Workmen's Ins. Fund, Harrisburg, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright, and Woodside, JJ.

Author: Rhodes

[ 174 Pa. Super. Page 183]

RHODES, President Judge.

Claimant, widow of Stanley Yanofchick, deceased, filed a claim for compensation on the ground that she

[ 174 Pa. Super. Page 184]

    was totally dependent upon him at the time of his death on May 20, 1951, although she had not lived with him since July 27, 1928. The parties were married on July 6, 1920.

This case arises under the Occupational Disease Act. The pertinent provision is in section 307 of the Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1407, and reads as follows: 'No compensation shall be payable under this section to a widow, unless she was living with her deceased husband at the time of his death, or was then actually dependent upon him and receiving from him a substantial portion of her support.' Section 307 of the Workmen's Compensation Act of 1915, as reenacted and amended, contains the same qualifying provision. 77 P.S. § 562.

Deceased had received an award of compensation for total disability shortly before his death which was due to anthraco-silicosis. The record of the proceeding on deceased's claim was made a part of the present record.

The burden was upon claimant, who admittedly had lived separate and apart from deceased for more than twenty-two years, in order to receive compensation, to establish that she was actually dependent upon deceased at the time of his death, and also that she was then receiving from him a substantial portion of her support. As we have said, the right of such a claimant to compensation has been made to depend upon the fact of receiving support at the time of her husband's death, Hendricks v. Bethlehem Steel Co., 150 Pa. Super. 257, 259, 27 A.2d 264; Kelly v. Star Auto Painting Co., 161 Pa. Super. 503, 506, 55 A.2d 426; Rickenbach v. Allentown Portland Cement Co., 167 Pa. Super. 579, 581, 76 A.2d 479; Motley v. C. F. Braun Construction Co., 169 Pa. Super. 141, 144, 82 A.2d 581, or the legal equivalent of actual

[ 174 Pa. Super. Page 185]

    receipt of such support, Binkley v. Stone & Webster Engineering Corp., 156 Pa. Super. 381, 385, 40 A.2d 132. Dependency itself without receiving a substantial portion of support at the time of deceased's death is insufficient to entitle a widow to compensation. Kelly v. Star Auto Painting Co., supra, 161 Pa. Super. 503, 505, 55 A.2d 426. And actual dependency would not be affirmatively established by mere proof of receipt of contributions or payments. Icenhour v. Freedom Oil Works Co., 145 Pa. Super. 168, 172, 20 A.2d 817; Sandy v. Hazle Brook Coal Co., ...


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