Appeals from the Order of the Workmen's Compensation Appeal Board, in the case of John Aggouras, Deceased Efstathios Aggouras, Father v. Olympic Blasting & Sand Company, No. A-92046.
Edward J. Morris, P.C., for petitioner.
Sandra R. Craig, with her, Joseph S. Bekelja, Margolis, Edelstein, Scherlis, Sarowitz and Kraemer, for Olympic Blasting and Sand Company.
Judges MacPhail, Barry, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.
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Efstathios Aggouras (Claimant), father of John Aggouras (Decedent) and Olympic Blasting & Sand Company (Employer) both petition for review of the order of the Workmen's Compensation Appeal Board (Board) granting Claimant's fatal claim petition pursuant to Section 301(a) of The Pennsylvania Workmen's Compensation
[ 114 Pa. Commw. Page 146]
Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 431. We reverse and reinstate the decision of the referee dated September 7, 1983, dismissing the fatal claim petition.
Decedent was killed on June 28, 1978, when he was struck by a beam while engaged in painting overhead bridges on the Pennsylvania State Turnpike on behalf of his employer. Decedent's wife, Dolores Aggouras, and his father, Efstathios Aggouras, both filed fatal claim petitions. The referee found that Decedent had been separated from his wife for six years, that divorce proceedings had been filed, and that no financial dependency existed. He therefore dismissed Dolores Aggouras's petition. This petition is not at issue here.
Decedent's father, Claimant, is a resident and citizen of Greece who has not seen Decedent since his son emigrated from Greece in 1972. He testified that Decedent sent him $50.00 per month in cash on which he was dependent, from 1972 until his son's death. Claimant was unable to produce any records or receipts as to expenses or monies received. On October 28, 1980, the referee dismissed Claimant's petition on the grounds that Claimant had not proved under Section 310 of the Act that the nation of Greece would allow recovery to a non-resident American citizen in a fatal claim petition filed under Greek law.*fn1 On appeal, the Board remanded
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the case to the referee to determine if Claimant was dependent and to interpret the validity of Section 310 of the Act in light of the Friendship, Commerce and Navigation Treaty Between the United States of America and Greece (Treaty).*fn2
On April 13, 1982, the referee issued a second decision specifically finding the Claimant's testimony that he received $50.00 per month from the Decedent insufficient as a matter of law to establish substantial dependency (R.R. 193a). He also refused to rule on the constitutionality of Section 310 of the Act. On appeal, and without taking additional evidence, the Board reversed the referee, holding that "(w)e have determined from a review of the record that decedent's father was in fact dependent on the decedent for ...