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E & S FABRICATING & WELDING COMPANY AND ROCKWOOD INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (05/02/80)

decided: May 2, 1980.

E & S FABRICATING & WELDING COMPANY AND ROCKWOOD INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CHARLOTTE ROSE EDMOND, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Richard Alan Edmond, deceased, Charlotte Rose Edmond, widow v. E & S Fabricating & Welding Company, No. A-74977.

COUNSEL

Fred C. Trenor of Meyer, Darragh, Buckler, Bebenek and Eck, for appellant.

Amiel B. Caramanna, Jr., with him Edward J. Tocci, for respondent.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Crumlish, Jr. Judge Mencer dissents. President Judge Bowman did not participate in the decision in this case.

Author: Crumlish

[ 51 Pa. Commw. Page 112]

This is an appeal by the decedent's employer, E & S Fabricating & Welding Company, from a decision by the Workmen's Compensation Appeal Board (Board) to grant a widow and child benefits under Section 307 of The Pennsylvania Workmen's Compensation Act.*fn1 We affirm.

[ 51 Pa. Commw. Page 113]

Charlotte R. Edmond filed a fatal claim petition for benefits*fn2 after her husband's death on October 15, 1976. Respondent avers that she was not only living with the decedent at the time of his death, but was totally dependent upon him. Employer challenges her claim on the basis of a failure to meet either the cohabitation or the substantial dependency requirements of Section 307, in that (a) she had separate residential addresses; (b) she filed for a divorce on August 6, 1976, which was still active at the time of death; (c) she and her husband had aggregately filed for divorce in the past on four or five occasions; (d) she sought and received a reduction in rent from Columbiana Metropolitan Housing Authority on September 1, 1976; (e) she filed for Ohio welfare benefits on September 24, 1976 under the premise that her husband was not in residence or providing support; (f) she filed for and was receiving Soldiers and Sailors Relief benefits under the same conditions; and (g) the testimony of the claimant was uncorroborated.

After extended hearings, the referee concluded that respondent was entitled to benefits, based upon the following findings of fact:

23. That your Referee after careful study and review of the entire record contained in this case including the lay testimony, various letters and the welfare and court documents and in consideration of the aforementioned Findings of Fact believes and, accordingly, finds that on October 15, 1976 the decedent and the claimant were lawfully married and living together at least on a partial basis. That the decedent was

[ 51 Pa. Commw. Page 114]

    under court order to provide support for his wife and child and, although unemployed, did take food from his parents' home to give to his family.

24. That, accordingly, your Referee finds that prior to October 15, 1976, namely from September 3, 1976 to October 15, 1976 the decedent and the claimant lived together with the exception of three days when he stayed with his parents. That the claimant and his minor child were dependent upon the decedent although the support rendered was meager due to his inability to ...


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