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SAMUEL URSO v. COMMONWEALTH PENNSYLVANIA (12/12/78)

decided: December 12, 1978.

SAMUEL URSO, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND THOMAS F. LEROY, DECEASED, BY PAULETTE, WIDOW, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Thomas F. Leroy, Deceased, Paulette, Widow v. Samuel Urso, No. A-73157.

COUNSEL

Ronald Ganassi, with him Will & Keisling, for petitioner.

Patrick F. McArdle, with him William R. Caroselli, and McArdle, Caroselli, Spagnolli & Beachler, for respondents.

Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 39 Pa. Commw. Page 185]

Petitioner-employer appeals an order of the Workmen's Compensation Appeal Board (Board) affirming a referee's award of workmen's compensation benefits to the claimant-widow (claimant). We affirm.

Claimant's husband suffered a fatal injury during the course of his employment with petitioner on May 17, 1975. At the time of his death, the decedent and

[ 39 Pa. Commw. Page 186]

    claimant, who were married on May 5, 1972, had been separated for a period of 10 months. Also at the time of his death, decedent was providing claimant with $80 per month for support pursuant to a consent order filed February 11, 1975. No children were born of the marriage.

On June 27, 1975 claimant filed a fatal claim petition pursuant to Section 307 of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562. At a hearing held on November 5, 1975, the claimant testified that at the time of her husband's death her monthly income consisted of: $180 from her employment, $80 from her husband and $145 from Public Assistance for the support of a minor son; she estimated her fixed monthly expenditures for rent, utilities, food and household items at $220 per month. The referee found claimant "totally dependent" on the decedent at the time of his death. On appeal, the Board remanded to the referee for a specific finding as to whether the support payments from the decedent constituted a substantial portion of the claimant's support. At a subsequent hearing the claimant testified that the $20 per week she received from her husband was used to buy food; she also testified that prior to receiving these support payments she used public assistance benefits of $77 per month to supplement her earnings. The referee found claimant was receiving a "substantial portion of her support" from the decedent and that she was "substantially dependent" on the decedent in that the $80 per month received from him constituted "the difference between the claimant being able to provide for herself the necessities of life," and awarded benefits.

The questions raised in this appeal are whether the claimant was actually dependent upon the decedent

[ 39 Pa. Commw. Page 187]

    and whether she was receiving a substantial portion of her support from him ...


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