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WESTINGHOUSE ELECTRIC CORPORATION v. COMMONWEALTH PENNSYLVANIA (12/04/78)

decided: December 4, 1978.

WESTINGHOUSE ELECTRIC CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ARTHUR L. GRAY, DECEASED, BY ERIN F. GRAY, DAUGHTER, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Arthur L. Gray v. Westinghouse Electric Corporation, No. A-71455.

COUNSEL

Robert C. Jones, with him Jones, Gregg, Creehan & Gerace, for appellant.

James E. McLaughlin, with him McArdle, McLaughlin & McVay, and James N. Diefenderfer, for appellees.

Judges Crumlish, Jr. and Blatt, sitting as a panel of two. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle and Craig. Judges Blatt and MacPhail did not participate. Opinion by Judge Crumlish, Jr. President Judge Bowman dissents.

Author: Crumlish

[ 39 Pa. Commw. Page 43]

Westinghouse Electric Corporation (Employer) appeals a decision of the Workmen's Compensation Appeal Board (Board) affirming a referee's grant of benefits to Erin L. F. Gray (Claimant) asserted by her parent and natural guardian, Gladys Foley.

[ 39 Pa. Commw. Page 44]

Arthur L. Gray (Decedent) died while acting within the course of his employment on May 23, 1974. On November 22, 1974, Gladys Foley gave birth to Claimant, a posthumous illegitimate daughter of Decedent. On May 16, 1975, a fatal claim petition was filed on Claimant's behalf by Gladys Foley, as parent and natural guardian. After hearing at which Employer offered no testimony, the referee awarded benefits to Claimant. Upon appeal, the Board sustained the referee's findings of fact and conclusions of law and upheld the award.

The following facts are not in dispute. Decedent was the natural father of Claimant and Gladys Foley the natural mother. Neither Decedent nor Foley knew she was pregnant at the time of Decedent's demise. Foley testified that she and Decedent had intended to marry in the fall of 1974, but that they had not cohabited on a continuing basis, nor had Decedent contributed to Foley's support.

Employer contends that, as a matter of law, a posthumous illegitimate child whose father and mother never lived together nor held themselves out as husband and wife and whose father never contributed to the mother's support, is not entitled to benefits under Section 307 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 562. Section 307 provides in part:

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.

In Brown v. Workmen's Compensation Appeal Board, 20 Pa. Commonwealth Ct. 330, ...


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