Appeal from the Order of the Workmen's Compensation Appeal Board in case of Barbara Brown, Widow of Almer Brown, deceased, v. Connelly Containers, Inc., No. A-64634.
Sara Duffy, for appellant.
David L. White, with him James N. Diefenderfer, for appellees.
Judges Crumlish, Jr., Kramer, and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 20 Pa. Commw. Page 331]
This is an appeal by Barbara Brown (Brown), widow of Almer Brown, from an order of the Workmen's Compensation Appeal Board (Board), dated December 14, 1972, which affirmed a referee's denial of benefits to Brown's minor son, Almer Maxwell Brown. The referee's award of benefits to three other children of Brown has not been questioned.
Almer Brown died while in the course of his employment on September 24, 1969. From November 1965 until the date of his death, Almer Brown had been residing out of wedlock with Barbara Brown.*fn1 The referee found that three children*fn2 of Barbara Brown were, at the time of Almer Brown's death, members of his household, supported and maintained by him. Awards were made to Brown "for and on behalf of" these minor children.
A fourth child, Almer Maxwell Brown, was born to Barbara Brown on December 18, 1969, almost three months after Almer Brown's fatal injury. The referee specifically found that Almer Brown was the natural father of Almer Maxwell Brown, but he denied benefits for this child because, in the referee's view, being born after the death of Almer Brown, "[Almer Maxwell Brown] can neither be deemed to be dependent on [Almer Brown] nor a member of his household. . . ." The Board affirmed, and Brown appeals to this Court.
[ 20 Pa. Commw. Page 332]
None of the facts set forth above have been challenged, and Brown's appeal turns solely upon the application of the following language from section 307 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562 (Supp. 1974-1975):
"Compensation shall be payable under this section to or on account of any child. . . . If members of decedent's household at the time of his death, the terms "child" and "children" shall include step-children, adopted children and children to whom he stood in loco parentis, and shall include posthumous children."
The Board affirmed the referee on the authority of Gierak v. Lehigh & Wilkes-Barre Coal Company, 101 Pa. Superior Ct. 397 (1931), which we must now expressly disapprove.
In all candor we note that Gierak is on all fours with the instant case, and cannot be meaningfully distinguished. Interpreting the same statutory language noted above, the ...