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DINDINO v. WEEKLY REVIEW PUBLISHING COMPANY (03/18/59)

March 18, 1959

DINDINO
v.
WEEKLY REVIEW PUBLISHING COMPANY, INC., ET AL., APPELLANTS.



Appeal, No. 29, Oct. T., 1959, from order of Court of Common Pleas of Montgomery County, April T., 1958, No. 75, in case of Anna P. Dindino, mother of Ralph Paul Dindino, deceased v. Weekly Review Publishing Company, Inc. et al. Order reversed.

COUNSEL

Paul H. Ferguson, for appellants.

Alexander F. Barbieri, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Wright

[ 188 Pa. Super. Page 608]

OPINION BY WRIGHT, J.

In this workmen's compensation case, claimant's sixteen year old son was fatally injured on September 25, 1956, when thrown from his employer's truck. Claimant filed a petition alleging total dependency. The Referee found as a fact that her dependency was partial only, and made an award on that basis. The Board affirmed the Referee's findings of fact, conclusions of law, and award. Upon appeal to the Court of Common Pleas of Montgomery County the employer's exceptions were sustained, the findings and award of the Referee, affirmed by the Board, were set aside and reversed, and the record was "returned to the Board and the Board is hereby directed to render an award consistent with this opinion and order". The employer has appealed.

The sole issue in this case is the extent of claimant's dependency. She was the only witness before the Referee. Her birthdate was June 30, 1917, and her son's birthdate was April 29, 1940. She and her husband were divorced in 1942, and she was regularly employed thereafter until June 1956 at the rate of $40.00 per week. At that time she was laid off, and her son suggested that he would quit school and go to work.*fn1 The

[ 188 Pa. Super. Page 609]

    son worked several months for American Pancore in Haverton. He was then laid off, and had started to work for Weekly Review Publishing Company in Conshohocken just the day before his death. Claimant is a co-owner of a family dwelling, in which she and her son lived with her two sisters and a brother, all three gainfully employed. The expense of the common dining table was met by a weekly contribution of $10.00 for each of the five occupants. The other expenses were divided equally among the four adults. The decedent turned his wages over to the claimant. She returned $5.00 to $9.00 a week, and kept the balance.

Section 307 of The Pennsylvania Workmen's Compensation Act*fn2 provides in pertinent part as follows: "In case of death, compensation shall be computed on the following basis, and distributed to the following persons ... 5. If there be neither widow, widower, nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employe at the time of the accident, thirty-two per centum of wages, but not in excess of thirteen dollars and twenty-five cents per week: Provided, however, That in the case of a minor child who has been contributing to his parents, the dependency of said parents shall be presumed: And provided further, That if the father or mother was totally dependent upon the deceased employe at the time of the accident, the compensation payable to such father or mother shall be fifty-two per centum of wages, but not in excess of twenty-two dollars per week".

[ 188 Pa. Super. Page 610]

The phrase "totally dependent" as used in the statute is equivalent in meaning to without any other source of income or livelihood: Makar v. Sullivan Trail Co., 135 Pa. Superior Ct. 317, 5 A.2d 595. Where the employer concedes partial dependency and the claimant asserts total dependency, the burden of proof is on the claimant: Kloskowski v. Hudson Coal Co., 130 Pa. Superior Ct. 490, 198 A. 689. The existence and extent of dependency are questions of fact which must be determined under the circumstances appearing of record in the particular case: Fawson v. Sterrick Coal Co., 129 Pa. Superior Ct. 245, 195 A. 165. It is not possible to lay down a general rule applicable to all cases: Tanner v. U.S. Steel Corp., 176 Pa. Superior Ct. 420, 107 A.2d 692. Questions of fact are for the compensation authorities and the appellate court may not make an independent appraisement of the evidence: Berman v. George J. Blair Co., 137 Pa. Superior Ct. 193, 8 A.2d 731. The Board is not required to accept even uncontradicted testimony as true and, where its decision is against the party having the burden of proof, the question before the court on appeal is whether the Board's findings of fact are consistent with each other and with its ...


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