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AUGUST BERTSCH v. PIKE COUNTY SAND & GRAVEL CO. AND WEIDNER COMPANIES (11/16/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: November 16, 1976.

AUGUST BERTSCH, JR. AND DOROTHY BERTSCH, PARENTS OF THEODORE H. BERTSCH, DECEASED. WORKMEN'S COMPENSATION APPEAL BOARD
v.
PIKE COUNTY SAND & GRAVEL CO. AND THE WEIDNER COMPANIES, AND UNITED STATES FIDELITY AND GUARANTY COMPANY, INSURANCE CARRIER. PIKE COUNTY SAND & GRAVEL CO. AND THE WEIDNER COMPANIES, APPELLANTS

Appeals from the Order of the Workmen's Compensation Appeal Board in case of August Bertsch, Jr. and Dorothy Bertsch, Parents of Theodore H. Bertsch, deceased v. Pike County Sand & Gravel Co. and The Weidner Companies, and United States Fidelity and Guaranty Company, Insurance Carrier, Fatal Claim Petition No. SS 202 36 0215.

COUNSEL

John H. Appleton, for appellants.

Raymond P. Kashimba, with him Krawitz, Sigal & Ridley, P.A., for appellee.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by President Judge Bowman.

Author: Bowman

[ 27 Pa. Commw. Page 91]

On April 24, 1970, Theodore H. Bertsch (deceased), age 22, was electrocuted while in the course of his employment with Pike County Sand & Gravel Co. (employer). On March 1, 1971, August Bertsch, Jr. and Dorothy Bertsch (claimants) filed a fatal claim petition alleging that they were partially dependent parents of the decedent within the meaning of Section 307(5) of The Pennsylvania Workmen's Compensation Act*fn1 (Act). The referee found that while August

[ 27 Pa. Commw. Page 92]

Bertsch, Jr. was not partially dependent upon the decedent, Dorothy Bertsch was, and he awarded her $25.00 per week plus certain funeral expenses.*fn2

The employer appealed to the Workmen's Compensation Appeal Board (Board), which affirmed the referee's award and dismissed the appeal. The employer then appealed to the Pike County Court of Common Pleas,*fn3 which upheld the referee's decision and the Board's affirmance thereof. The employer now brings this appeal.

In a workmen's compensation case, where the party with the burden of proof prevailed before the referee and the Board took no additional evidence, our review is limited to a determination of whether constitutional rights were violated, an error of law was committed, or a necessary finding of fact of the referee was unsupported by substantial evidence, leaving questions of evidentiary weight to the referee. Mikalonis v. Workmen's Compensation Appeal Board, 25 Pa. Commonwealth Ct. 166, 172-3, 361 A.2d 483, 487 (1976); Workmen's Compensation Appeal Board v. Power Systems Division, McGraw Edison, 20 Pa. Commonwealth Ct. 548, 342 A.2d 445 (1975). Claimants had the burden of affirmatively proving dependency here as they were parents claiming benefits for the death of an adult child. Leipziger v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 417, 315 A.2d 883 (1974); Davis v. Welsbach Corp., 201 Pa. Superior Ct. 520, 193 A.2d 621 (1963).

The employer argues that the claimant, Dorothy Bertsch, did not carry her burden of proof and that the referee's conclusion that she was partially dependent was not supported by competent evidence inasmuch

[ 27 Pa. Commw. Page 93]

    as there was no specific testimony as to the cost of her maintenance and support as distinguished from the expenses of the entire household. To evaluate this argument, we must review some of the basic facts of the family's financial situation which were found by the referee and not seriously disputed by the employer as supported by substantial evidence.

At the time of the decedent's death, the household consisted of the following members: August Bertsch, Jr. (father), who earned $560.00 (gross) per month and had take-home pay of $448.00 per month; Dorothy Bertsch (mother), who was not employed but who managed the household and all financial affairs; a minor child, Susan; an adult son, David, who earned $376.00 (gross) per month and contributed approximately $112.00 per month to the household; and decedent who earned $390.00 (gross) per month and contributed varying amounts between $100.00 and $260.00 per month. The referee found that the family had essential monthly household expenses of $723.72 per month, not including federal and state income taxes or miscellaneous personal and household expenses. He estimated the total family income at $822.00 per month based on the father's gross pay of $560.00 and the contributions from David ($112.00) and the decedent ($150.00 average per month). The referee found that while total monthly contributions did exceed the estimate of essential expenses by about $50.00, when taxes and miscellaneous expenses were considered, the family "was just making ends meet."*fn4 He further found that while it was reasonable to presume that a portion of decedent's contributions included his room and

[ 27 Pa. Commw. Page 94]

    board, a portion was also attributable to the general fund for the household used to pay the family's expenses.*fn5 We note that this last finding, which was supported by competent evidence, clearly distinguishes this case from Mikalonis, supra, and Regent Bottling Co. v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 8, 309 A.2d 265 (1973).

While not disputing any of these facts or figures per se, employer argues that a finding of partial dependency of the mother cannot be supported absent specific evidence of the mother's cost of maintenance and support and cites Davis v. Welsbach Corp., supra, in support of this contention.

In a similar case, Leipziger, supra, 12 Pa. Commonwealth Ct. at 420-21, 315 A.2d at 885, we stated: "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).

". . . 'Dependency is not affirmatively established by mere proof of the receipt of contributions. . . .'

[ 27 Pa. Commw. Page 95]

DiCampli v. General Electric Company, 193 Pa. Superior Ct. 427, 431, 165 A.2d 255, 257 (1960). If, however, an award of dependency is based upon competent evidence, or upon an inference fairly deducible therefrom, such award must be sustained even though on independent examination a court would have found otherwise. Howard v. McClane, 146 Pa. Superior Ct. 212, 22 A.2d 225 (1941)." (Emphasis added.)

We believe that the record in this case contains sufficient competent evidence to support the referee's finding that the claimant, Dorothy Bertsch, was partially dependent on the contributions received from decedent. In effect, the evidence shows that the family was dependent on decedent's contributions and it is "fairly deducible therefrom" that the mother, who had no earnings of her own, shared in this dependency to some extent. This case is clearly distinguishable from Davis v. Welsbach Corp., supra, cited by employer, where the father had income of $4,000.00 a year, the son who lived in another city contributed $120.00 to $240.00 a year to the parents, and there was no evidence of the parents' expenses from which to conclude or reasonably deduce a finding of dependency.

The employer raises an additional argument that claimant should not be awarded benefits for life when, in reality, an adult child does not generally provide support for his parents during their entire lifetime. This is essentially an attack on the 1968 amendment to Section 307 of the Act, 77 P.S. ยง 561, and this issue was resolved in claimant's favor in Kreider v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 79, 308 A.2d 187 (1973).

Order

Now, November 16, 1976, the order of the court below is hereby affirmed.

Disposition

Affirmed.


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