Appeal, No. 344, Oct. T., 1959, from order of Court of Common Pleas of Centre County, Sept. T., 1957, No. 360, in case of Fannie Confer, widow of Donald J. Confer, deceased v. Herbert R. Imbt, Inc. et al. Appeal dismissed.
Robert C. Haberstroh, with him Lewis Orvis Harvey, for appellants.
Patrick H. Fierro, with him John R. Miller, and Miller & Kistler, for appellee.
Before Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., and Hirt, J., absent).
[ 191 Pa. Super. Page 76]
This is a workmen's compensation case. The question before us is whether the compensation authorities were warranted in holding that Fannie Confer, this widow-claimant, qualified as a dependent under Section 307(7) of the Workmen's Compensation Act of June 1915, P.L. 736, as amended, 77 P.S. 562. The referee made an award in her favor, which was affirmed on appeal by the Workmen's Compensation Board and by the court of common pleas. The employer corporation and its insurance carrier have appealed.
Donald J. Confer was a laborer in the employ of Herbert R. Imbt, Inc. On May 21, 1956, during the course of his employment, Confer sustained an accidental injury which resulted in his death on June 3, 1956. Confer and the claimant were married on May 28, 1955, and subsequently lived in one room of a dwelling owned jointly by Confer and his brother. The dwelling was also occupied by Conver's mother, father, brothers, and sisters. This unsatisfactory arrangement was the cause of frequent dissension. As stated by the board: "One thing led to another - arguments, fights, bodily injuries - until the end result was that claimant had to leave sometime in March, 1956".*fn1 During the interval between the date of the separation and the date of the accident, claimant contacted her husband by telephone on at least four occasions in an attempt to reconcile their differences, but to no avail. The tenth finding of the referee, affirmed by the board,
[ 191 Pa. Super. Page 77]
was as follows: "That from the evidence your referee finds that although the claimant was not living with her decedent at the time of his death, yet she was dependent upon him for her support; that the claimant never acquiesced to any action by her husband under circumstances amounting to a repudiation by him of his legal obligation to support his wife; that the claimant did not wilfully abandon her husband, her action in leaving him being brought about by intolerable conditions under which she was compelled to live with him".
Since the amendment of June 21, 1939, P.L. 520, the pertinent portion of Section 307(7) of the Workmen's Compensation Act has read 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". Appellant contends that, in view of her admission that she was not living with her husband at the time of his death and was not receiving any support from him, claimant did not as a matter of law meet the legislative requirement. If the statutory language is read literally, appellant's contention must be sustained. However, we have held in prior cases that the legislature did not intend that the statute should be given a literal interpretation, and have repeatedly stated that dependency is a factual matter for determination by the compensation authorities.
The first case decided, following the amendment of 1939, was Hendricks v. Bethlehem Steel Co., 150 Pa. Superior Ct. 257, 27 A.2d 264, wherein the husband and wife were not living together and there was an order of support for their child. It ...