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DAVID SMITH AND SARAH SMITH v. COMMONWEALTH PENNSYLVANIA (10/03/85)

decided: October 3, 1985.

DAVID SMITH AND SARAH SMITH, INDIVIDUALLY AND AS SURVIVING PARENTS OF DAVID O. SMITH, DECEASED, CLAIMANT, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, CRIME VICTIM'S COMPENSATION BOARD, RESPONDENT



Appeal from the Order of the Crime Victim's Compensation Board in case of Re: Claim No. 83-1430-D, David Orlando Smith, Victim, dated November 26, 1984.

COUNSEL

William W. Spalding, with him, Roger S. Spalding, Fell & Spalding, for petitioners.

Amy Zapp, Deputy Attorney General, with her, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Craig and MacPhail, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 92 Pa. Commw. Page 149]

David Smith and Sarah Smith (Petitioners), husband and wife, appeal from a decision and order of the Crime Victim's Compensation Board (Board) which denied their claim for compensation filed pursuant to Section 477 of The Administrative Code of 1929 (Code), Act of April 9, 1929, P.L. 177, as amended, added by Section 2 of the Act of July 9, 1976, P.L. 574, as amended, 71 P.S. §§ 180-7 -- 180-7.18.

The facts of this case are not in dispute. On April 6, 1984, Petitioners' nine year old son was the victim of a homicide. Petitioners sought compensation under Section 477.3(a)(3) of the Code, as amended, 71 P.S. § 180-7.3(a)(3) and filed a claim for compensation in the amount of $4,016.70. On September 20, 1984, the Board denied the claim, reasoning that:

Claimants seek loss of earnings for two weeks but Rules and Regulations limit an award for

[ 92 Pa. Commw. Page 150]

    one weeks [sic] loss of earnings to one parent in the amount of $200.00. Further, the Act provides compensation of medical expenses for the victim only, not his survivors. Claimant received $5,037.15 in life insurance proceeds. Claimants did not incur a financial loss within the parameters of the prevailing [Code].

Petitioners requested the Board to reconsider its decision, alleging (1) the Board failed to consider the past, present and future earnings and support of the Petitioners' son; (2) the Board erred in determining that only one parent was entitled to one week's loss of earnings; and (3) the victim's mother and sister have had to undergo psychiatric care, at considerable expense, as a result of the homicide. Petitioners submitted a written statement from a Dr. Verzilli, a professor of economics at Drexel University, purporting to show the potential value of the life-time earning capacity of the decedent. No other evidence was presented and no hearing was requested. Petitioners requested that the Board enter an award in the amount of $25,000.00.

On November 26, 1984, the Board reaffirmed its earlier decision and the instant appeal followed. In this appeal, Petitioners have directed their argument to that portion of the Board's decision denying Petitioners an award for loss of future earnings and support for the death of their child.

We must note that this Court in Gloeckl v. Pennsylvania Crime Victim's Compensation Board, 57 Pa. Commonwealth Ct. 28, 425 A.2d 877 (1981) held that the General Assembly never intended that the crime victim's compensation program was to be the equivalent of a tort action. Petitioners, nevertheless, argue that Levato v. ...


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