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BROADWOOD CHUCKWAGON v. WORKMEN'S COMPENSATION APPEAL BOARD (KENNETH STOVALL (05/23/83)

decided: May 23, 1983.

BROADWOOD CHUCKWAGON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (KENNETH STOVALL, DECEASED, BY MARION STOVALL, MOTHER), RESPONDENTS



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.

COUNSEL

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.

Author: Crumlish

[ 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 ...


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