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JACK LEIPZIGER v. WORKMEN'S COMPENSATION APPEAL BOARD AND MARGARET GUIDA (03/08/74)

decided: March 8, 1974.

JACK LEIPZIGER, TRADING AS CONGRESS HOTEL, AND SECURITY INSURANCE CO. OF HARTFORD, INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND MARGARET GUIDA, MOTHER OF MORRIS GUIDA, DECEASED, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Margaret Guida, Mother of Morris Guida, deceased, v. Jack Leipziger, t/a Congress Hotel, and Security Insurance Co. of Hartford, Insurance Carrier, No. A-66522.

COUNSEL

Raymond J. Porreca, for appellants.

W. J. Krencewicz, for appellee.

Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 12 Pa. Commw. Page 419]

Morris Guida, 28 years old and unmarried, died on June 27, 1968 as a result of gunshot wounds received during a robbery of the Congress Hotel (employer) in Philadelphia. At the time of his death Guida was employed as a clerk in the hotel at a salary of $80.00 per week, and his mother, Margaret Guida (claimant), sought compensation benefits pursuant to Section 307(5) of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561. Following hearings, a referee found that Guida had died as a result of injuries suffered in the course of his employment and that the claimant was entitled to benefits because she had been partially dependent upon Guida at the time of his death. The referee's decision was affirmed by the Workmen's Compensation Appeal Board (Board) and the employer thereafter appealed to this Court.

On appeals to this Court in workmen's compensation cases, our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or any necessary finding of fact was unsupported by substantial evidence. Jessop Steel Company v. Workmen's Compensation Appeal Board and Okey Miller, 10 Pa. Commonwealth Ct. 186, 309 A.2d 86 (1973). And where, as here, the Board has taken no additional evidence, we must rely on the facts as found by the referee if they are supported by sufficient competent evidence. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The essential question here seems to be one of dependency. At the time of Guida's death, Section 307(5) of the Workmen's Compensation Act, 77 P.S. § 561(5), provided: "If there be neither widow, widower, nor children entitled to compensation, then to

[ 12 Pa. Commw. Page 420]

    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 twenty-five dollars 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 thirty-eight dollars per week." (Emphasis added.)

The term "dependency" as used in the statute contemplates actual dependency and must affirmatively appear in the record as a fact. Gaich v. Kerlin Construction Co., Inc., 170 Pa. Superior Ct. 535, 85 A.2d 642 (1952). The test of dependency is whether or not the child's earnings were needed to provide the parents with some of the ordinary necessities of life suitable for persons in their class and position, and that the parents were, consequently, dependent to some extent upon the child at the time of the accident causing his death. Regent Bottling Company v. Workmen's Compensation Appeal Board and Reese, 10 Pa. Commonwealth Ct. 8, 309 A.2d 265 (1973); Zedalis v. Jeddo-Highland Coal Co., 113 Pa. Superior Ct. 49, 172 A. 169 (1934). If the contribution of the deceased child were necessary to maintain the parents in an established, reasonable standard of living, this existing standard must be considered in determining the necessity for such contribution from the child. Smitti v. Roth Cadillac Company, 145 Pa. Superior Ct. 292, 21 A.2d 127 (1941).

"Where parents are claiming compensation under the Workmen's Compensation Act for the death of an adult son, the burden of ...


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