Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1963, No. 4891, in case of Minerva Walker v. Charles D. Heavey et al.
Lowell A. Reed, Jr., with him J. Grant McCabe, and Rawle & Henderson, for appellants.
James J. DeMarco, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Concurring Opinion by Ervin, P. J. Montgomery, J., joins in this opinion.
[ 207 Pa. Super. Page 529]
This is a workmen's compensation case. On September 12, 1961, Annas Walker, an employe of Charles D. Heavey, received a fatal injury when he fell from a scaffold. His widow, Minerva Walker, filed a claim petition alleging partial dependency. The Referee made an award which was affirmed by the Board. The court below dismissed an appeal by the employer, and entered judgment for the claimant. The employer and his insurance carrier have now appealed to this Court.
After taking testimony at three hearings, the Referee made the following findings of fact, inter alia: "6. That the decedent left to survive him his widow, Minerva Walker, whom he married on June 29, 1952, and was actually dependent upon and receiving from the decedent a substantial portion of her support at the time of his death. 7. That the decedent left the Claimant's household on April of 1959, but from then until the time of death the decedent contributed an average of $25.00 per week*fn1 toward the support of the
[ 207 Pa. Super. Page 530]
Claimant and her children and grandchildren; that the Claimant's allegation of support is further supported by the preponderance of testimony to the effect that the Claimant and decedent continued to cohabit as man and wife on week-ends to the time of the decedent's death".
Appellants' basic contention is that the Referee's findings, affirmed by the Board, are not supported by substantial competent evidence. They argue that the claimant failed to establish that she was personally dependent upon the decedent and received from him a substantial portion of her own support. The question before us is whether the compensation authorities were warranted in holding that claimant qualified as a dependent under Section 307(7) of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended by the Act of June 21, 1939, P. L. 520, 77 P.S. 562, which reads in pertinent part 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". We have made a painstaking review of the voluminous record. No useful purpose would be served by detailing the conflicting testimony. It is summarized in the Board's opinion as follows:
"The facts indicate that claimant and decedent moved into a 9-room, 3-story house in December, 1956 with 7 children and grandchildren. At that time, both claimant and decedent were employed. Both claimant and decedent made arrangements for the lease, and the purchasing of furniture and clothing for the family was incurred on the credit of both deceased and claimant. The facts further show that decedent left the home voluntarily in April, 1959 but that he occasionally returned for week-ends and stayed with claimant.
[ 207 Pa. Super. Page 531]
Decedent occasionally would make repairs to the home and gave to the claimant an average of $20.00 per week. Claimant testified that after decedent started to stay away in April, 1959 she asked him for money and that there were no support arrangements existing between them but that every time claimant needed money the decedent would either bring it to her or would send it. Again, it was testified that the claimant sent to decedent for money when she needed it and that she used his money between the years 1952 and ...