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BUILDERS EXCHANGE v. COMMONWEALTH PENNSYLVANIA (01/11/82)

decided: January 11, 1982.

BUILDERS EXCHANGE, INC. AND AMERICAN STATES INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN S. SACIK, DECEASED, BY SHIRLEY, WIDOW, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of John S. Sacik, deceased, Shirley, Widow v. Builders Exchange, Inc., No. A-78251.

COUNSEL

Donald R. Rigone, Fisher, Long & Rigone, for petitioners.

Lee J. Calarie, Calarie & Calarie, for respondents.

President Judge Crumlish, Jr. and Judges Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Blatt

[ 64 Pa. Commw. Page 95]

The petitioners, Builders Exchange, Inc. and American States Insurance Company (insurer), appeal a decision of the Workmen's Compensation Appeal Board (Board) which reversed a referee's decision to dismiss claimant Shirley Sacik's*fn1 petition to review a supplemental agreement.

The facts in this case are not in dispute. On May 20, 1976, John S. Sacik died as a result of a work-related accident while in the employ of the Builders Exchange, Inc. and left surviving him, the widow-claimant, and three minor children, all of whom were financially dependent upon the decedent at the time of his death. The decedent's average weekly wage was $254.24 and a compensation agreement was entered into by the parties providing for payment to the claimant on her and the children's behalf at the weekly rate of $169.49 pursuant to Section 307, clause 4 1/2, of The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 561 (4 1/2), which provides for compensation at the rate of 66 2/3% of the decedent's average weekly wage. The claimant then remarried on August 18, 1978, and pursuant to Section 307 of the Act, 77 P.S. § 562,*fn2 was entitled to a lump sum equal to 104 weeks of compensation at a rate computed in accordance with clause 2 of Section 307 after which all compensation to her would

[ 64 Pa. Commw. Page 96]

    cease. Clause 2 of Section 307 of the Act, 77 P.S. § 561(2) provides that compensation be paid "[t]o the widow or widower, if there be no children, [at] fifty-one percentum of wages, but not in excess of the Statewide average weekly wage." The insurer then paid the claimant a lump sum of $13,484.64 (51% of wages or $129.66 x 104 weeks).

At this juncture, the issue in this case arose. The insurer, during the 104-week period following the payment of the lump sum to the claimant, paid, on the three children's behalf, 15 2/3% ($39.84) of the decedent's average weekly wage. The insurer arrived at this figure by subtracting the lump sum amount (51%) from the 66 2/3% rate that the claimant would have been receiving had she not remarried. The claimant disagreed with this method of calculation and maintained, inter alia, that the proper rate of compensation payable to the children during the 104-week period was 52% as set forth in clause 1(c) of Section 307 of the Act, 77 P.S. § 561(1)(c), which states that

1. If there be no widow nor widower entitled to compensation, compensation shall be paid to the guardian of the child or children, or, if there be no guardian, to such other persons as may be designated by the board as hereinafter provided as follows:

(c) If there be three children, fifty-two per centum of wages of deceased, but not in excess of the Statewide average weekly wage.

The claimant seeks to justify the use of the 52% rate enumerated in clause 1(c) of Section 307 on the basis of the proviso in Section 307, 77 P.S. § ...


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