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IRBY CONSTRUCTION CO. AND LIBERTY MUTUAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD AND GALE HUNSINGER (08/17/73)

decided: August 17, 1973.

IRBY CONSTRUCTION CO. AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND GALE HUNSINGER, WIDOW OF LESLIE HUNSINGER, DECEASED, APPELLEES. NANCY VAOW HUNSINGER, WIDOW OF LESLIE HUNSINGER, DECEASED, APPELLANT, V. WORKMEN'S COMPENSATION APPEAL BOARD AND IRBY CONSTRUCTION CO. AND LIBERTY MUTUAL INSURANCE COMPANY, INSURANCE CARRIER, APPELLEES



Appeals from the Orders of the Workmen's Compensation Appeal Board in cases of Gale Hunsinger, Widow of Leslie Hunsinger, Deceased, v. Irby Construction Co. and Liberty Mutual Insurance Co., Insurance Carrier, No. A-65754, and Nancy Vaow Hunsinger, Widow of Leslie H. Hunsinger, Deceased, v. Irby Construction Co. and Liberty Mutual Insurance Co., Insurance Carrier, No. A-65821.

COUNSEL

Adrian R. King, with him Joseph R. Thompson, for Irby Construction Co. and Liberty Mutual Insurance Company.

Ambrose R. Campana, for Gale Hunsinger.

Davis R. Hobbs, for Nancy Vaow Hunsinger.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt. President Judge Bowman dissents.

Author: Blatt

[ 9 Pa. Commw. Page 592]

On September 15, 1970, Leslie Hunsinger (decedent) died as the result of an accident sustained while employed by the Irby Construction Company (employer). Numerous workmen's compensation claim petitions were thereafter filed seeking benefits for the children

[ 9 Pa. Commw. Page 593]

    of the decedent. As the matter stands before this Court, the issue is not whether compensation benefits are payable, but to whom they should be paid.

This tangled state of affairs began on November 28, 1959, when the decedent married Shirley Lockard. This marriage produced two children and ended in divorce on January 26, 1962. On February 2, 1962, he married Beverly Place, they had one child, and were divorced on April 10, 1963. On August 31, 1963, the decedent married Nancy Vaow, and this marriage produced one child. The decedent subsequently separated from Nancy Vaow Hunsinger and moved to California, but they were never divorced. On December 30, 1967,*fn1 the decedent went through a marriage ceremony in California with Gale Johnson (claimant) and they had one child, Nichole Anne Hunsinger. In July of 1969 the decedent left California and returned to Pennsylvania, where he remained until his death. The claimant and Nichole were left in California and never saw the decedent again. The decedent occasionally contributed to their support, and the claimant had initiated divorce proceedings.

Each of the decedent's former wives (including the claimant) filed claim petitions on behalf of their respective children, and the referee granted benefits to all of the children for whom claims were made. In deciding on the claimant's petition, the referee found that she had not known the decedent was already married when she "married" him, but that their alleged marriage was bigamous and Nichole, therefore, was illegitimate. He still awarded Nichole compensation, however, because he found that the decedent was in loco parentis to Nichole.

[ 9 Pa. Commw. Page 594]

The employer appealed to the Workmen's Compensation Appeal Board (Board), and an appeal was also taken to the Board from the referee's decision on her petition by Nancy Vaow Hunsinger on the grounds that the grant to Nichole lessened the benefits paid to her child. The ...


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