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Wilson v. Travelers Casualty and Surety Co. (Employer's Ins. Co.)

Commonwealth Court of Pennsylvania

December 3, 2013

Beth Wilson, Appellant
v.
Travelers Casualty and Surety Company (Employer's Insurance Company) and Honeywell, Inc. (successor in interest to Allied Signal, Inc., Employer)

Submitted: September 13, 2013.

Page 238

Appealed from No. 2010-35625 and 2012-19984. Common Pleas Court of the County of Montgomery. Moore, J.

Robert J. Murphy, Philadelphia, for appellant.

Jessica M. Heinz, Philadelphia, for appellees.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge. OPINION BY JUDGE McGINLEY.

OPINION

Page 239

BERNARD L. McGINLEY, Judge

Beth Wilson (Claimant) appeals from two orders of the Court of Common Pleas of Montgomery County (common pleas court) which vacated and struck down two judgments that were entered by the Montgomery County Prothonotary in favor of Claimant pursuant to Section 428 of the Workers' Compensation Act,[1] 77 P.S. § 921 (pertaining to judgment and execution for failure to pay benefits due).[2]

Page 240

At all times relevant to this appeal, Claimant was an adult female who was severely mentally retarded due to Down's syndrome.

This controversy began thirty years ago when Claimant's father, James Wilson, (hereinafter " Father" ) filed a Claim Petition at Bureau Claim No. 777631, in which he alleged that as of September 15, 1983, he was totally disabled from lung disease and asbestosis caused by his exposure to asbestos during the course of his employment with Employer from 1950 to 1981.[3]

Father died on September 29, 1990, (before his Claim Petition was resolved). Up until the time of Father's death, Claimant and her Mother had lived with Father. After Father died, Claimant continued to live with Mother for a short period, but because Mother was blind, infirm and unable to care for Claimant, Claimant was moved to a diagnostic group home.

Mother filed a Fatal Claim Petition on January 7, 1991, at Bureau Claim No. 609835, and alleged that Father's death was caused by his occupational disease.[4] After fifteen years of litigation, on May 16,

Page 241

2006, Workers' Compensation Judge Susan Kelley (WCJ Kelley) granted the Fatal Claim Petition and awarded weekly death benefits in the amount of $302.40, which represented sixty-percent of Father's average weekly wage, pursuant to the Schedule of Beneficiaries set forth at Section 307 of the Workers' Compensation Act, 77 P.S. § § 561, 562, for a widow and one dependent child.

The fatal claim award included an award for $517,958 (approximately 811 weeks between 1991 when the Fatal Claim Petition was filed and approximately May of 2007 at $302.40 per week), plus fifty percent penalty and attorney's fees of twenty percent.

Based upon the credited testimony of Claimant's sister, Sheila Wilson, WCJ Kelley found that although Claimant was over the age of eighteen, Claimant was dependent upon Father at the time of his death as the result of her disability. WCJ Kelley specifically found that " Anne Wilson [Mother] and Beth Wilson [Claimant] were dependent on Decedent [Father] at the time of his death." WCJ Decision, May 16, 2006, Finding of Fact No. 35 at p. 7. The Board affirmed.

On May 2, 2008, Employer petitioned this Court for review and argued, inter alia, that the evidence was insufficient to establish Claimant's dependency on Father because the finding required medical testimony. On July 8, 2008, this Court found WCJ Kelley's findings on this issue were supported by substantial evidence and upheld the Board.[5] Anne Wilson and James Wilson, Deceased v. Traveler's Insurance Company and Allied Signal, Inc., (Pa. Cmwlth., Nos. 893 C.D. 2007, 989 C.D. 2007, 2297 C.D. 2007, 2298 C.D. 2007, filed July 8, 2008).

Disputes arose concerning the precise amount of the judgment and Employer/Insurer's right to subrogation. Employer/Insurer eventually paid Mother the $517,000 award for past fatal claim benefits, plus penalties and attorney's fees, and began weekly fatal claim payments of $302.

On February 18, 2010, while Mother was still living, Employer/Insurer stopped paying the $302 weekly fatal benefits.[6]

On December 3, 2010, pursuant to Section 428 of the Act, 77 P.S. § § 921 and 951, Attorney, Robert J. Murphy, Esquire, (Attorney) filed and served on Employer/Insurer, a Praecipe to the Prothonotary of the Montgomery County Court of Common Pleas at Civil Docket No. 2010-35625, to enter judgment for Claimant in the statutory amount of $30,000, which represented Employer/Insurer's default on the death benefits payable to Claimant.

Despite the fact that Claimant was not competent on her own to consent to any legal filings, and despite the fact that no

Page 242

guardian ad litem was appointed[7] to represent Claimant's interests in this litigation, Attorney commenced the action by " Beth Wilson," in her own right, and captioned the action: " Beth Wilson, Claimant v. Travelers Casualty and Surety Company and Honeywell, Inc."

Mother died on January 5, 2012.

On April 30, 2012, Employer/Insurer filed a petition to vacate and strike the December 3, 2010 judgment and to preclude Claimant from executing on the judgment.

On July 10, 2012, the common pleas court heard argument on the petition to vacate and strike the judgment. Employer/Insurer argued that Claimant was not a member of the class of Father's dependents at the time of death; therefore, Claimant ...


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