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C.P. WRIGHT CONSTRUCTION COMPANY v. COMMONWEALTH PENNSYLVANIA (10/18/79)

decided: October 18, 1979.

C.P. WRIGHT CONSTRUCTION COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND SANDRA J. SMITH, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Gary Leon Spielman, Deceased; Sandra J. Smith, Claimant v. C.P. Wright Construction Company, No. A-74111.

COUNSEL

Michael J. Brillhart, with him Markowitz, Kagen & Griffith, for petitioner.

John A. Ayres, Jr., with him Ullman, Painter, Misner and Ayres, for respondents.

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

Author: Rogers

[ 46 Pa. Commw. Page 533]

C.P. Wright Construction Company (Wright) has appealed a decision of the Workmen's Compensation Appeal Board affirming the referee's decision that Matthew and Kelli Smith, minors, are entitled to continued compensation benefits under Section 307 of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 562. We vacate the Board's order and remand the record to the Board for a recomputation of benefits to be paid on behalf of Matthew, Kelli and a third child, Staci Lynn Smith.

Matthew and Kelli, whose deceased father, Gary Leon Spielman, was an employe of Wright, had been receiving compensation benefits from Wright under Section 307 of the Act, which provides in part that "[c]ompensation shall be payable under this Section to or on account of any child . . . under the age of eighteen. . . ."*fn1 Their mother, Mr. Spielman's widow, Sandra J. Smith, subsequently remarried. Her new husband adopted the children. Wright then petitioned for termination of benefits to Matthew and Kelli under Section 413 of the Act, 77 P.S. § 772, which provides for termination of benefits when, inter alia, "the status of any dependent has changed."*fn2

Wright argues that the Appeal Board erred in deciding that actual dependency is not required for a child to receive compensation benefits. Wright contends that Matthew and Kelli's adoption by their stepfather ended their dependency upon their deceased father's estate and thus removed them from the purview

[ 46 Pa. Commw. Page 534]

    of Section 307 of the Act. This argument is without merit, as it has been consistently held that actual dependency is not required for a child to receive compensation benefits under Section 307 of the Act. Lehigh Foundations, Inc. v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 416, 419, 395 A.2d 577, 578 (1978); Mohan v. Publicker Industries, Inc., 202 Pa. Superior Ct. 581, 198 A.2d 326 (1964).

Wright also argues that the Appeal Board was incorrect in deciding that Matthew and Kelli's adoption did not change their status as children of their deceased father. Wright reasons that under the Adoption Act, Act of July 24, 1970, P.L. 620, §§ 101 et seq., as amended, 1 P.S. §§ 101 et seq., Matthew and Kelli's rights flowing from their deceased father, including compensation benefits, have been severed and have been transferred to their adoptive father. While this argument is one of first impression in Pennsylvania, the majority of courts in other jurisdictions which have dealt with the issue have held that a child's adoption after a parent's death does not affect that child's right to receive compensation benefits. See 2 A. Larson, Workmen's Compensation Law § 64.40 (1976) and cases cited therein. We agree with the Appeal Board's adoption of the majority rule. As we have stated in Lehigh Foundations, 39 Pa. Commonwealth Ct. at 422, 395 A.2d at 579, "[s]section 307 evidences a legislative intent to compensate children of a deceased employee as a result of their filial status." The Adoption Act does not alter a child's "filial status", but merely provides that the child "shall have all the rights of a child and heir of the adopting parent . . . and shall be subject to the duties of a child to him. . . ." Section 502 of the Adoption Act, 1 P.S. § 502. Nor is there any indication in the Workmen's Compensation Act of a legislative intent to terminate benefits to a child upon the

[ 46 Pa. Commw. Page 535]

    child's adoption subsequent to a parent's death. Therefore, it cannot be said that Matthew and Kelli's status as Spielman's children has changed so as to permit termination of their benefits under ...


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