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JOHN AND DOROTHY MIKALONIS v. WORKMEN'S COMPENSATION APPEAL BOARD (06/15/76)

decided: June 15, 1976.

JOHN AND DOROTHY MIKALONIS, PARENTS OF JOHN MIKALONIS, DECEASED, APPELLANTS
v.
WORKMEN'S COMPENSATION APPEAL BOARD, JACOB M. KALLISH AND SECURITY INSURANCE OF HARTFORD, INSURANCE CARRIER, APPELLEES



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Mikalonis, Sr., and Dorothy Mikalonis, father and mother of John Mikalonis, Jr., deceased v. Jacob M. Kallish.

COUNSEL

John L. Poserina, with him Michael I. Luber, and, of counsel, Ettinger, Poserina, Silverman, Dubin, Anapol & Sagot, for appellants.

Raymond J. Porreca, with him James N. Diefenderfer, for appellees.

Judges Crumlish, Jr., Mencer and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 25 Pa. Commw. Page 168]

John Mikalonis, Jr. (deceased) died of a gunshot wound of the chest on April 20, 1971, at the age of nineteen years, six months. Prior to his death, he had been employed by Jacob M. Kallish (employer) as a truck driver-helper earning a weekly "take home" salary of $100.00.

On December 31, 1971, John Mikalonis, Sr. and Dorothy Mikalonis (claimants) filed a fatal claim petition alleging themselves to be partially dependent parents of the deceased. The referee awarded claimants $25.00 per week, representing maximum partial dependency, as well as certain hospital and funeral expenses.

The employer appealed the referee's decision to the Workmen's Compensation Appeal Board on the grounds: (1) that the deceased was not in the course of his employment at the time of his death; (2) that claimants were not, in fact, dependent upon the deceased at the time of his death; and (3) that the referee erred in not admitting into evidence the written statement of one, Christopher Mitchell.

The Board rejected the employer's first and third arguments, but reversed the referee on the dependency issue. The Board apparently found that the referee's factual finding of need was not supported by substantial evidence, and, therefore, that his legal conclusion of dependency constituted an error of law. We agree with the Board concerning the dependency issue and affirm without passing upon the other two issues.

The referee made the following crucial finding of fact with which we are concerned: "4. Claimant's are the Father and Mother, respectively of their said decedent,

[ 25 Pa. Commw. Page 169]

    who lived with them, his parents, and regularly contributed $20.00 per week to their support; His said weekly contributions were needed by claimant's to carry the household expenses."

In addition, he made the following conclusion of law: "2. Claimant's are the partially dependent Parents of ...


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