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LEHIGH FOUNDATIONS v. COMMONWEALTH PENNSYLVANIA (12/27/78)

decided: December 27, 1978.

LEHIGH FOUNDATIONS, INC. AND EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, MILDRED B. KELLY AND BRETT ARTHUR FEGAN, A MINOR, BY DIANE R. FEGAN, PARENT AND NATURAL GUARDIAN/RUDY ARTHUR KELLY, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mildred B. Kelly and Bret Arthur Fegan, a minor, by Diane R. Fegan, parent and natural guardian; Rudy Arthur Kelly, deceased v. Lehigh Foundations, No. A-72575.

COUNSEL

James K. Martin, with him Kenneth F. DeMarco, for petitioners.

Gerald J. Haas, with him James N. Diefenderfer, for respondents.

Judges Crumlish, Jr., Wilkinson, Jr. and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 39 Pa. Commw. Page 418]

Lehigh Foundations, Inc. (Employer), and its insurance carrier, appeal a decision of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Brett Arthur Fegan (Claimant).

Claimant, the illegitimate child of Diane R. Fegan (now Diane R. Harper) and Rudy Arthur Kelly (Decedent), was conceived while his parents were in high school in Pennsylvania. The pregnant mother moved to Virginia to have their child and Decedent arranged for her and Claimant's prenatal care, paid the medical expenses connected with the birth and the bills for Claimant's subsequent monthly check-ups, and, until his death, contributed $20.00 a week toward Claimant's support.

Decedent died on October 28, 1970, as a result of injuries he received while working for Employer. At the time of his death, Decedent resided with his parents in Pennsylvania and Claimant was living with his mother in Virginia. Thereafter, Diane R. Fegan, as his natural parent and guardian, filed a fatal claim petition on Claimant's behalf. Following a hearing, the referee awarded benefits to Claimant as Decedent's sole surviving dependent.*fn1 On appeal, the Board held that an illegitimate child is a child for compensation purposes and upheld the award, citing

[ 39 Pa. Commw. Page 419]

    to such child.*fn3 Absent an express provision setting the standards of eligibility for a deceased employee's illegitimate children, courts have construed this classification to include illegitimate children and to require them to satisfy this two-fold criteria for eligibility in addition to their paternity and minority status. Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951); Penn Sanitation Co. v. Hoskins, 10 Pa. Commonwealth Ct. 528, 312 A.2d 458 (1973); Brovdy v. Jones & Laughlin Steel Corp., 145 Pa. Superior Ct. 602, 21 A.2d 437 (1941).

The statute expressly provides that posthumous children fall within its purview. We have construed this classification to include illegitimate posthumous children and have held that recovery is not limited to instances where the decedent provided support to the mother or where the natural parents resided together prior to the employee's death. Westinghouse Electric Corp. v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 42, 394 A.2d 1071 (1978); Brown v. Workmen's Compensation Appeal Board, 20 Pa. Commonwealth Ct. 330, 342 A.2d 134 (1975). In Westinghouse Electric Corp., supra, we refused to relegate posthumous illegitimate children to a less favorable position by forcing them to meet stricter criteria of eligibility than posthumous legitimates are required to meet.

As a result, legitimate children born during a deceased employee's lifetime, posthumous legitimates and posthumous ...


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