77 Pa. Commw. 11 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal of an order of the Workmen’s Compensation Appeal Board (Board) which affirmed a
This case arises out of the fatal shooting of Seymour Hochman on September 25, 1975.
Section 307 of the Pennsylvania Workmen’s Compensation Act
No compensation shall be payable under this section to a widow, unless she was living with her deceased husband at the time of his death, or was then actually dependent upon him and receiving from him a substantial portion of her support.
The Board therefore erred in concluding that at the time of Seymour Hochman’s death, Sylvia Hochman was dependent upon him and receiving from him a substantial portion of her support.
It has been held that under some circumstances a widow need not show receipt of actual support from her husband although she is living separately from him. See Confer v. Herbert R. Imbt, Inc., 191 Pa. Superior Ct. 74, 155 A.2d 382 (1959); Creasy v. Phoenix Utilities Co., 276 Pa. 583, 120 A. 659 (1923). In Confer, the wife had been separated from her husband for three months and during that time made numerous attempts to reconcile their differences. The
In contrast, this Court held that a claim for widow’s benefits was barred because the widow living apart from her husband had acquiesced in the entry of a divorce decree which provided support for her children but not herself. Under such circumstances, she could not be considered dependent and receiving support under Section 307. Penn Sanitation Co. v. Hoskins, 10 Pa. Commonwealth Ct. 528, 312 A.2d 458 (1973). We find the circumstances here to be similar to those in Hoskins and distinguishable from those in Confer and Creasy. The record in the case before us is clear that during the three years of separation prior to Seymour Hochman’s death, he made no payments in support of his wife and removed her from coverage under his medical insurance. The record is equally clear that during that time, Sylvia Hochman maintained herself and her daughter by working and by contributions from members of her family, and sought no support from her estranged husband. We believe this shows that Seymour Hochman repudiated his obligation of support and that Sylvia Hochman acquiesced in that repudiation.
Order
Now,. September 1, 1983, the order of the Workmen’s Compensation Appeal Board, No. A-81241, dated July 29, 1982, is hereby reversed.
Hochman was shot in the parking lot of a motel in Newark, New Jersey while en route to a business sales meeting in New York. He died on September 26, 1975.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §562.
Where, as here, the party with the burden of proof has prevailed before the Board, our review is to determine if the Board has violated constitutional rights or made an error of law, or if necessary findings are unsupported by substantial evidence. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).