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decided: December 27, 1978.


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.


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 illegitimates now share the same standards

[ 39 Pa. Commw. Page 421]

    determining their eligibility and are entitled to benefits merely because of their status as children of deceased employees. Nevertheless, Employer urges that the traditional construction given this statute requiring illegitimate children born during the deceased employe's lifetime to satisfy two further criteria to be eligible (i.e., in loco parentis relationship with decedent and membership in his household), remains viable and should be applied to the instant claim petition. Claimant, however, contends that such a construction adds an unconstitutional gloss to a facially neutral statute by classifying potential beneficiaries in a manner that deprives illegitimate children of equal protection of the laws.

The constitutional guarantees of equal protection*fn4 do not mandate that all citizens be treated identically but allow the state to define classes and to treat different classes of persons accordingly. However, the minimal level of scrutiny requires that the different classes be created on the basis of criteria that bear a reasonable relation to the legitimate objective of the statute before different treatment accorded along class lines can withstand constitutional attack.*fn5

[ 39 Pa. Commw. Page 422]

We do not intimate that dependency or an in loco parentis relationship with the deceased employee are not proper criteria to be used in evaluating claims petitions were such criteria to be applied against all of a deceased employee's children. Our holding merely dictates that it is the unequal application of such criteria that violates equal protection and we therefore refuse to apply the same in determining Claimant's petition.*fn6

We are constrained to seek an interpretation which supports the constitutionality of legislation. U.S. v. National Dairy Products Corp., 372 U.S. 29 (1963); Kurtz v. Erie, 389 Pa. 557, 133 A.2d 172 (1957). Inasmuch as the statute suffers no facial unconstitutionality with respect to illegitimates, we construe its provisions in accordance with the demands of equal protection and hold that the grant of compensation under Section 37, 77 P.S. ยง 562, "to or on account of any child" embraces illegitimate children within its meaning.*fn7

[ 39 Pa. Commw. Page 424]

Accordingly, we


And Now, this 27th day of December, 1978, the decision of the Workmen's Compensation Appeal Board, No. A-72575, dated July 21, 1977, is affirmed. It is ordered that judgment be entered in favor of Diane R. Harper, as parent and natural guardian of Brett Arthur Fegan, and against Lehigh Foundations, Inc., and/or its insurance carrier, with the latter to pay compensation at the rate of $25.00 weekly from October 28, 1970 to December 26, 1987, inclusive, together with the sum of $235.66 incurred by Diane R. Harper as costs.

Interest at the rate of six (6%) percent per annum is awarded on any deferred payments in accordance with Section 410 of the Act as it existed prior to the 1972 Amendments.

Lehigh Foundations, Inc., and/or its insurance carrier, shall pay directly to Diane R. Harper's attorney, out of the award, twenty (20%) percent of each payment of compensation as attorney's fees and shall pay the balance of the award directly to Diane R. Harper.



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