Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Charlotte Ann Hoskins v. Penn Sanitation Company and Liberty Mutual Insurance Company, No. 3300 May Term, 1971.
Roger B. Wood, with him Joseph R. Thompson, for appellants.
Louis W. Fryman, with him Steven J. Hartz, and Becker, Fryman & Ervais, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Mencer, sitting as a panel of three. Opinion by Judge Wilkinson.
[ 10 Pa. Commw. Page 529]
Robert Hoskins sustained a fatal accident in the course of his employment on November 14, 1967. He was survived by his widow, the claimant-appellee, and two children, one of whom had been born to the claimant-appellee prior to her marriage to the decedent. During the two and one-half year marriage, the claimant-appellee and the decedent separated twice, each separation resulting in the claimant-appellee seeking and obtaining a support order. Claimant-appellee and decedent remained separated up to the date of decedent's death.
[ 10 Pa. Commw. Page 530]
This appeal is from the decision by the Court of Common Pleas of Philadelphia County affirming the Workmen's Compensation Board's*fn1 and referee's decisions granting fatal claim benefits to the claimant-appellee and her two minor children. Two issues are presented. First, is the claimant-appellee entitled to benefits notwithstanding the fact that she was separated from decedent at the time of the fatal accident, and that a support order (sought by the claimant-appellee and entered five weeks prior to the fatal accident) required the decedent to support the claimant-appellee's two children but did not require him to support the claimant-appellee? Second, is an illegitimate child born to the claimant-appellee prior to the marriage entitled to benefits?
Section 307 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, Art. III, as amended, 77 P.S. § 562, provides, inter alia : "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." (Emphasis added.) The conclusion of the lower court, the Board, and the referee that the claimant-appellee was dependent upon the decedent and was receiving from him a substantial portion of her support ignored the effect of the support order of October 10, 1967. That order was the second such order, the first having specifically provided for the support of the "wife and one child."
The second support order provided only for the support of the "two children." This order, as in Hendricks v. Bethlehem Steel Co., 150 Pa. Superior Ct. 257, 27 A.2d 264 (1942), was limited to the children and did not include support of the wife. The order was acquiesced
[ 10 Pa. Commw. Page 531]
in by the wife, see Shimkus v. Philadelphia & Reading Coal & Iron Co., 280 Pa. 88, 124 A. 335 (1924), and such acquiescence bars recovery, Hendricks, supra. Our Superior Court, in Binkley v. Stone & Webster Engineering Corp., 156 Pa. Superior Ct. 381, 385, 40 A.2d 132, 135 (1944), distinguished Hendricks as follows: "There [in Hendricks ] the Order was for the support of a child alone. Either the husband was not liable for the wife's support or she acquiesced in his failure to support her. She was barred on either alternative." (Emphasis added.) Such language is controlling here.
The question of the use of the payments pursuant to the order is also resolved by Hendricks, supra : "[T]he support order was limited to the child. It is no answer to the requirements of the statute to say that she used payments for the child's support for herself." 150 Pa. Superior Ct. 257, 260, 27 A.2d 264, 265, 266. Any payments the wife may have received from her husband pursuant to the order of October 10, 1967, constituted ...