decided: August 14, 1979.
GRETCHEN J. PETERSON, PETITIONER
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA CRIME VICTIM'S COMPENSATION BOARD, RESPONDENT
Appeal from the Order of the Pennsylvania Crime Victim's Compensation Board in case of In Re: Claim of Gretchen J. Peterson, File No. 77-0088-D, dated August 2, 1978.
Ronald C. Makoski, for petitioner.
Sally A. Lied, Deputy Attorney General, with her J. Andrew Smyser, Deputy Attorney General, and Edward G. Biester, Jr., Acting Attorney General, for respondent.
Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.
[ 45 Pa. Commw. Page 73]
This case of first impression requires us to review an order and award of the Pennsylvania Crime Victim's Compensation Board (Board).
An amendment to the Administrative Code of 1929 (Act), Act of April 9, 1929, P.L. 177, as amended, added by Section 2 of the Act of July 9, 1976, P.L. 574, as amended, 71 P.S. § 180-7 et seq., created the Board and empowered it to provide for the financial losses of innocent victims of violent crimes and their dependents by compensating them for out-of-pocket losses and loss of support or earnings. Pursuant to the Act, Gretchen J. Peterson (Petitioner) filed a claim for compensation, following the criminal homicide of her husband.
The first area of compensation, out-of-pocket loss, includes such items as medical care and treatment and funeral expenses. The Board found that Petitioner
[ 45 Pa. Commw. Page 74]
incurred an out-of-pocket loss of $35.70 for hospital expenses and $2,919.00 for funeral and burial expense.*fn1 Petitioner does not dispute that part of the order.
In computing the amount of Petitioner's loss of support, the second area of recovery authorized by the Act, the Board multiplied $3,265.08 (80% of her husband's annual net income) by 27.7, the anticipated remaining labor force participation years of her husband, who died at age 35, and found that Petitioner incurred a permanent loss of support of $90,442.71. However, Section 477.9 of the Act, 71 P.S. § 180-7.9, requires awards to be reduced by any payments received by the claimant as a result of the death or injury.*fn2 Petitioner received life insurance proceeds in the amount of $5,016.95. Furthermore, she will receive Social Security payments of $78.10 per month for herself and for each of her five children until each child reaches the age of 18. These amounts total $65,760.20, and deducting all payments either received or due to be received, the Board found that Petitioner incurred an actual loss of support in excess of $19,000.00. Since the Act limits loss of support to $15,000.00, it would appear that Petitioner should receive that amount.
[ 45 Pa. Commw. Page 75]
Instead of awarding Petitioner $15,000.00 for loss of support, however, the Board determined that until 1985,*fn3 when Petitioner's two oldest children have reached eighteen years of age, she will be receiving more money annually in Social Security payments ($5,623.00) than she would have received from her husband had he remained alive. Reasoning that the legislature did not intend to create a windfall, but instead intended to reimburse victims only for their actual losses, the Board held that since Petitioner would incur no loss of support until 1985, she should, at that time, request the Board to reopen her claim to consider compensation for said loss. It is from this part of the order that Petitioner appeals.
We agree with Petitioner that the Board should have awarded her $15,000.00 for the loss of her late husband's support. Section 477.9(b) of the Act, 71 P.S. § 180-7.9(b), states that an award for the loss of support shall include "loss of past, present or future earnings or support." Neither side disputes the fact that over the next 27.7 years, Petitioner will sustain an actual loss in excess of $15,000.00. Furthermore, the Board's regulations, at 37 Pa. Code § 191.9(j), provide that an award shall equal the Claimant's "uncompensated loss," to be calculated by reducing the total loss by the amount of the various payments, insurance,
[ 45 Pa. Commw. Page 76]
Social Security, etc., received as a result of the injury or death. The Board erred, then, in failing to make a present award to Petitioner for loss of support. We shall remand to the Board for the making of such an award.*fn4
We hasten to add, however, that in making the award to Petitioner, the Board may elect to defer payments until such time as Petitioner's monthly Social Security payments fall below the amount her husband would have provided. While nothing in the Act specifically authorizes such action, we find implied authority in Section 477.10, 71 P.S. § 180-7.10, which allow the Board to "reconsider a claim at any time and modify or rescind previous orders for compensation based upon a change in financial circumstances of a victim or one or more of his surviving dependents."*fn5 If the Board can halt payments based upon a change in a claimant's financial position, it ought certainly to be able to defer payments in a case such as the instant one.*fn6
We also find deferred payments in this situation to be consistent with the purpose of the Act, which we
[ 45 Pa. Commw. Page 77]
interpret as being to compensate victims and their dependents for actual losses sustained,*fn7 after factoring out payments from other sources. Given the purpose of the Act, it makes sense to defer payments to a claimant, who, now, and for some time to come, will receive more, as a result of a violent crime, than she would have received had the crime never occurred.
And Now, this 14th day of August, 1979, the order of the Crime Victim's Compensation Board, denying loss of support benefits to Gretchen J. Peterson, is hereby reversed, and the case is remanded to the Board for a computation of benefits and a determination of their manner of payment, consistent with this opinion.
Reversed and remanded.