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CELOTEX CORPORATION v. COMMONWEALTH PENNSYLVANIA (03/28/79)

decided: March 28, 1979.

CELOTEX CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND ROMONA HARGUST, MOTHER OF JOHN T. MCINTYRE, II, RONALD HARGUST AND RHONDA HARGUST, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Romona, mother of John T. McIntyre, II, Ronald Hargust and Rhonda Hargust v. Celotex Corporation, No. A-72073.

COUNSEL

David F. Kaliner, with him Kaliner and Joseph, for petitioner.

Gerald J. Haas, for respondents.

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

Author: Wilkinson

[ 41 Pa. Commw. Page 417]

This is an appeal by petitioner Celotex Corporation (employer) of a decision by the Workmen's Compensation Appeal Board (Board) which affirmed a decision of a referee granting workmen's compensation death benefits to three minor claimants. Employer protests the granting of benefits to two of these minor claimants. We affirm.

John Timothy McIntyre (decedent) was crushed to death in a shingle making machine while in the course of his employment on October 31, 1972. In November of 1972, a fatal claim petition was filed by his parents. In March of 1973, another fatal claim petition was filed by Mrs. Romona Hargust, a woman with whom decedent was living at the time of his death; the beneficiaries named were a posthumously born child of Mrs. Hargust and decedent and two other children of Mrs. Hargust's, Ronald and Rhonda Hargust. Mrs. Hargust asserted that decedent stood "in loco parentis" to Ronald and Rhonda (claimants).

In August of 1975, following the several hearings at which extensive testimony was offered, decedent's parents withdrew their fatal claim petition.

On June 18, 1976, the referee found benefits due to all three children. Employer appealed to the Board, but only that part of the decision which granted benefits

[ 41 Pa. Commw. Page 418]

    to Ronald and Rhonda. On November 3, 1977, the Board affirmed the referee. This appeal followed.

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, provides in pertinent part that:

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 ...


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