Appeal, No. 252, Oct. T., 1960, from judgment of Court of Common Pleas No. 2 of Philadelphia County, June T., 1959, No. 3402, in case of Mary DiCampli v. General Electric Company. Appeal sustained and judgment entered for appellant.
Francis Hopkinson, with him Drinker, Biddle & Reath, for appellant.
Jack C. Briscoe, with him Samuel H. Stewart, for appellee.
Before Wright, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., and Gunther, J., absent).
[ 193 Pa. Super. Page 429]
This is a workmen's compensation case. The question before us is whether the compensation authorities were warranted in holding that Mary DiCampli, the claimant, qualified as a partial dependent under Section 307(5) of The Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. 561. The Referee made an award in claimant's favor, which was affirmed by the Workmen's Compensation Board and by the Court of Common Pleas. The employer has appealed.
There is no dispute as to the facts. Alexander J. DiCampli, Jr., aged 23 years, unmarried son of Alexander DiCampli, Sr. and Mary DiCampli, was fatally injured in an industrial accident on December 12, 1956, while in the employ of the General Electric Company. At the time of the son's death his average weekly wage was $80.00.*fn1 He lived in the family home, 2103 South 61st Street, Philadelphia, which was owned by his parents free of incumbrance. In addition to the deceased son, the household consisted of the parents and another son, aged 14 years. The father, claimant's husband, was regularly employed as a maintenance foreman by the Baltimore and Ohio Railroad Company. His take-home pay was $75.00 per week, all of which he contributed to the support of his wife and family. The deceased son gave his mother a minimum of $15.00 per week, occasionally as much as $18.00 or $20.00, in return for which he was provided with a furnished room, including linens, plus three meals a day. In addition, claimant did her son's laundry and sometimes bought clothing for him.
[ 193 Pa. Super. Page 430]
There was no direct testimony in claimant's case as to the cost of her support. However, the Referee and counsel for appellant elicited on cross-examination the total sum of $2,370.00 as the amount of household expenses which claimant and her husband estimated on an annual basis. By contrast, the take-home pay of claimant's husband amounted to $3,900.00 per year. The only evidence of claimant's dependency was her unsupported statement that the amounts received from her deceased son were contributions to her support, that she considered these contributions necessary for her maintenance, and that "I miss that money".
At the time of this accident, Section 307 of the statute provided 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".
We are here not concerned with the case of a minor child, so that there is no presumption of dependency. Furthermore, claimant is not a widow but is living with and being supported by her husband, who makes no assertion that he himself ...