Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Kenneth Stovall, deceased, Marion, Mother v. Broadwood Chuckwagon, No. A-78996.
Charles W. Craven, with him Jo Marjorie Fineman, Marshall, Dennehey, Warner, Coleman & Goggin, for petitioner.
Thomas H. Goldsmith, Goushian, Mooradian, Goldsmith & Keller, for respondents.
Judges Craig, MacPhail and Doyle, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Rogers, Blatt, Williams, Jr., Craig, MacPhail and Doyle. Opinion by President Judge Crumlish, Jr. Judge MacPhail dissents.
[ 74 Pa. Commw. Page 427]
Broadwood Chuckwagon (employer) appeals a Workmen's Compensation Appeal Board order awarding partial dependency benefits to Marion Stovall. We modify and remand.*fn1
The facts are not in dispute. After her son was killed by a co-employee, Stovall sought benefits under Section 307(5) of The Pennsylvania Workmen's Compensation Act (Act).*fn2 The decedent had been earning an average weekly wage of $86.00 and, while living with Stovall, contributed $216.67 per month to the household. From this, claimant allocated $115.00 for the decedent's monthly expenses of food, clothing, public transportation and a separate telephone. The
[ 74 Pa. Commw. Page 428]
balance of the $216.67 was allocated toward claimant's expenses.
Stovall is divorced, is unemployed and her three minor daughters live with her. Her monthly income, apart from the decedent's contribution, was $623.50. After excluding the $115.00 allocated to the decedent, the referee calculated the claimant's monthly expenses to be $633.00. The referee also found that the claimant paid $100.00 per month for the junior college education of one of her daughters. The Board,*fn3 in awarding partial dependency benefits, concluded that Stovall had met her burden of proving dependency on the decedent and further concluded that the post-secondary expenses of Stovall's daughter were a necessity of life for which the mother was dependent upon her son.
Our scope of review, where the party with the burden of proof has prevailed below,*fn4 is limited to determining whether an error of law was committed or whether the necessary findings of fact were supported by substantial evidence. Bertsch v. Pike County Sand & Gravel Co., 27 Pa. Commonwealth Ct. 90, 365 A.2d 886 (1976).
Section 307(5) of the Act provides, in pertinent part:
In case of death, compensation shall be computed on the following basis, and distributed to the ...