Appeal from the Order of the Crime Victim's Compensation Board in the case of Claimant: Edna F. Fortson, Claim No. 83-0522-D, dated November 7, 1984.
Carolyn L. Gaines, for petitioner.
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. President Judge Crumlish, Jr., and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Concurring and Dissenting Opinion by Judge MacPhail.
[ 98 Pa. Commw. Page 274]
Edna Fortson appeals an order of the Crime Victim's Compensation Board which denied her claim for benefits based on its conclusion that Fortson was ineligible to receive compensation for her husband's homicide because the total amount payable to her from other sources as a result of the crime offset and exceeded the award for out-of-pocket expenses and loss of support for which she otherwise would have been eligible under section 477 of The Administrative Code of 1929, known as the Crime Victim's Compensation Act.*fn1
We must determine whether the board erred in computing the claimant's loss of support by (1) failing to consider factors which might have had an impact on the victim's future earning capacity, and (2) improperly offsetting the survivor's benefits of the victim's pension against the potential award.
At the time of his death on November 13, 1982, the claimant's husband, Roy Fortson, was thirty-five years old and worked for the City of Philadelphia as a deputy sheriff. In support of her claim for out-of-pocket expenses and loss of support, the claimant submitted various documents which formed the basis for the board's conclusion that the claimant had incurred the following losses:
Out-of-pocket expenses $8,875.39
Loss of support 289,853.36
[ 98 Pa. Commw. Page 275]
The out-of-pocket expenses included the cost of medical care rendered to the victim as a result of the crime, and funeral expenses.
Projection of Loss of Support
The board calculated the loss of support in accordance with a detailed formula contained in a regulation set forth at 37 Pa. Code § 191.9b(a), which provides, in part:
(i) Determine the net annual income of the victim by subtracting social security tax, Federal income tax, State income tax, and local wage taxes from the gross earnings for the 12 months immediately preceding the occurrence of the crime.
(iii) Attribute 80% of the net adjusted profit as support to the surviving dependent.
(iv) Determine the average number of remaining years of labor force participation by the victim by use of the publication Penna. Damages -- Personal Injury Verdicts, Troutman.
(v) Determine the average number of remaining years of life for the claimant by use of the publication Penna. Damages -- Personal Injury Verdicts, Troutman.
(vi) Multiply the net annual loss of support by the average number of remaining years of labor force ...