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ANDERSON v. GREENVILLE BOROUGH ET AL. (01/28/71)

decided: January 28, 1971.

ANDERSON
v.
GREENVILLE BOROUGH ET AL., APPELLANTS



Appeal from order of Superior Court, No. 171, April T., 1969, affirming order of Court of Common Pleas of Mercer County, Sept. T., 1967, No. 11, in case of Frances Fabian Anderson, widow of Frederick R. Anderson, deceased, v. Borough of Greenville et al.

COUNSEL

Irwin M. Ringold, for appellants.

George Hardy Rowley, with him Voorhies, Dilley, Keck, Rowley & Wallace, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen.

Author: Per Curiam

[ 442 Pa. Page 12]

This is an appeal from a per curiam order of the Superior Court, 216 Pa. Superior Ct. 747, 259 A.2d 691 (1969), affirming a judgment of the Court of Common Pleas of Mercer County which affirmed an order of the Workmen's Compensation Board. The issue presented is unique and involves the subrogation provisions of the Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, art. III, § 319, as amended, 77 P.S. § 671 (Supp. 1970).

Frederick Anderson was struck and killed by a negligently operated automobile while in the course of his employment as a police officer for the Borough of Greenville. He was survived by his widow, Frances Anderson, appellee herein, and six minor children. Appellee entered into an agreement with American Casualty Company, decedent's employer's compensation insurer, whereby the insurer began making payments of $47.50 per week pursuant to the Act of June 2, 1915, P. L. 736, as amended, September 30, 1961, P. L. 1762, 77 P.S. § 561 (4 1/2) (Supp. 1970).*fn1 The insurer also paid to the widow the $750 statutory burial expense pursuant to § 307(7), 77 P.S. § 561(7) (Supp. 1970). (Hereafter,

[ 442 Pa. Page 13]

    the Borough of Greenville and American Casualty Company shall be referred to as either the employer or the appellant).

Subsequently, Mrs. Anderson, as administratrix, filed a complaint in trespass against the driver of the vehicle which struck and killed her husband. An amicable settlement of $9500 was reached and approved by the Mercer County Court. The employer filed with the Workmen's Compensation Board a petition for suspension requesting a determination of the distribution to be made of the settlement among the various beneficiaries and the allocation of credit against compensation to which the employer was entitled under § 319 of the Workmen's Compensation Act, which provides for the subrogation rights of an employer.

Under § 307 (4 1/2) appellee was to receive $47.50 per week because decedent was survived by a widow and more than three children. If he had been survived by a widow and no children, the payment would have been $30.50; if a widow and one child, $36.50; and if a widow and two children, $43.00. Of the amount received in settlement from the third party ($9500), $175 is subtracted for the purpose of this subrogation action, that being the difference between the actual funeral expense ($925) and the statutory burial allowance ($750). This is done because the employer is entitled to credit only for the actual amount it paid toward the funeral expense. The remaining $9325 was distributed to the beneficiaries in accordance with the intestate laws, the widow receiving one-third ($3,108.33) and the children one-ninth each ($1,036.11).

The controversy here concerns the extent to which the employer is to be subrogated to the proceeds of the settlement of the trespass action, i.e., how much of the settlement proceeds should be treated as advance ...


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