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BROADWOOD CHUCKWAGON v. WORKMEN'S COMPENSATION APPEAL BOARD (STOVALL) (12/29/87)

decided: December 29, 1987.

BROADWOOD CHUCKWAGON, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (STOVALL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board, in the case of Kenneth Stovall, Deceased, Marion Stovall, Mother v. Broadwood Chuckwagon, No. A-87509.

COUNSEL

Charles W. Craven, Marshall, Dennehey, Warner, Coleman & Goggin, for petitioner.

Patrick Shea, with him, Edward Tuite, Goushian, Mooradian & Goldsmith, P.C., for respondent, Kenneth Stovall, Deceased, Marion Stovall, Mother.

Judges Craig and Doyle, and Senior Judge Barbieri, sitting as a panel of three. President Judge Crumlish, Jr. and Judges Craig, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge Craig. Judge Barry joins in this dissent.

Author: Crumlish

[ 112 Pa. Commw. Page 215]

On May 28, 1987, we entered an Order granting reargument of this matter limited to the issue of whether, pursuant to our prior Order and Opinion in Broadwood Chuckwagon v. Workmen's Compensation Appeal Board (Stovall), 74 Pa. Commonwealth Ct. 426, 459 A.2d 1355 (1983) (Broadwood Chuckwagon I), claimant Marion Stovall's benefits should terminate when her child reached the age of eighteen.*fn1

The pertinent facts are set forth in Broadwood Chuckwagon I and are not in dispute. There we held that the claimant, whose son was killed by a co-employee, had established the requisite dependency to be entitled to benefits under Section 307(5) of The Pennsylvania Workmen's Compensation Act (Act).*fn2 We concluded that, because Stovall was obligated to support her minor children, the amount of the decedent's contribution attributable to the minor sister's college

[ 112 Pa. Commw. Page 216]

    tuition was a necessity of life,*fn3 but only until the decedent's sister reached the age of eighteen years. Broadwood Chuckwagon I, 74 Pa. Commonwealth Ct. at 430, 459 A.2d at 1357.

It is Stovall's position that the Board properly awarded benefits to continue indefinitely on the ground that the Board "[knew] of no authority for a change of dependency status after the date of injury." Board decision, p. 2, Record Item No. 31.

As authority for her contention, Stovall relies on DeGuffroy & Associates v. Workmen's Compensation Appeal Board (Bianchetti), 94 Pa. Commonwealth Ct. 566, 503 A.2d 994 (1985), where this Court held that dependent parents are entitled to benefits until they die. Id. at 567, 503 A.2d at 994. DeGuffroy, in turn, relied for its authority upon Kreider v. Workmen's Compensation Appeal Board, 10 Pa. Commonwealth Ct. 79, 308 A.2d 187 (1973). We find Stovall's reliance on these cases misplaced.

In DeGuffroy the employer filed a modification petition, contending that the claimant's status had changed insofar as her income exceeded her expenses. There, the Court noted that Section 413 of the Act, 71 P.S. ยง 772, governing modification or termination, has no provision recognizing an economic change in the status of a dependent parent.*fn4 However, the instant case is an

[ 112 Pa. Commw. Page 217]

    appeal from an initial determination of dependency, which is governed by Section 307(5) and is thus distinguishable.

In Kreider, where the employer did appeal a finding of dependency, there was neither a showing nor even an assertion that a change in the claimant's status would occur. The sole allegation of error set forth by the appellant was that the Board had no authority to grant unlimited benefits in the face of ...


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