56 A.2d 384 | Pa. Super. Ct. | 1947
Argued November 13, 1947.
Albert Orosky, a 15 year old boy, was killed instantly on March 3, 1945, as a result of an accident suffered by him in the course of his employment with American Window Glass Company. Margaret Orosky and Joseph Orosky, appellants, parents of the deceased minor, were awarded workmen's compensation by a referee on the ground of partial dependency. The board concluded that appellants were not partially dependent upon the deceased's earnings within the meaning of section 307(5) of the Workmen's Compensation Law, as amended by the Act of 1939, P.L. 520,
The sole issue is whether there is legally sufficient evidence to support the finding of the board that the employer produced competent evidence sufficient to rebut *197
the presumption of dependency in favor of parents of a deceased minor. The Act of 1939, P.L. 520, section 307(5),
Appellants' contention that: "There is not one scintilla of evidence . . . offered by the defendant to rebut this presumption" is without merit.
In support of this contention, appellants stressed the following evidence: Mrs. Margaret Orosky had been working at the Pitcairn Yards of the Pennsylvania Railroad Company for many years, thereby assisting in supporting and maintaining the family, which consisted of herself, her husband, and three minor children; that when she became pregnant in 1944 and stopped work, the deceased minor then quit school and sought employment to enable him to assist in the purchase of household needs; that on November 15, 1944, he obtained employment with the Aaron Furniture Company, but left on December 3, 1944, and the $106.00 which he had then earned he turned over to his parents, receiving "about fifty cents a week" for his personal expenses; that for a short time thereafter, he worked for one Henry Sliwoski, a coal dealer, and while so employed earned an estimated total of $60.00 or $75.00 all of which he turned over to his parents; and that on March *198 1, 1945, the deceased entered appellee's employ and worked only three days when the accident occurred, resulting in his death. His earnings from his last employment amounted to $26.00.
Mrs. Orosky also testified that she and her husband, together with her parents, had purchased a farm where appellants presently reside, for the sum of $3,000.00; that she and her husband make mortgage payments thereon amounting to $54.00 per month; that her food bill was approximately $20.00 every two weeks; real estate taxes amounted to $79.00 per year. At the conclusion of her testimony, she was asked: "Q. Is there any other living expense that hasn't been mentioned that you want to mention? A. I don't think so."
Appellee called the pay-master of the father's employer who testified that his total earnings for the year 1944 were $3,113.42 or a monthly average of $259.45, and that he earned $945.35 during the first four months of 1945, a monthly average of $236.34. The board found the total basic annual expense of the Orosky family was $1247.00. The board further found as a fact that "the father earned more than enough to pay all of his surviving family's living expenses" and concluded as a matter of law that "the presumption of partial dependency of the claimants upon their deceased son is untenable. . ."
The testimony of the pay-master regarding the actual earnings of the father is not challenged. His average earnings, when compared with appellants' estimated regular expenditures, makes apparent the impossibility of a finding of dependency within the meaning of the statute. "The term dependency, in the statute, contemplates actual dependency and must affirmatively appear in the record as a fact": Morris v. Yough Coal Supply Co.,
Judgment affirmed.
