23 A.2d 66 | Pa. Super. Ct. | 1941
Argued October 1, 1941.
John L. Sweeney died from accidental injury on April 2, 1931 and an agreement was entered into by claimant with defendant employer for compensation to her, in her own right as widow, for 300 weeks ending January 1, 1937 and to her on behalf of Francis J. Sweeney, a nephew of decedent, as to whom he had stood in loco parentis, for a term ending June 17, 1937. It was not until February 17, 1937, after her compensation as widow had been paid in full in accordance with the agreement, that claimant for the first time asserted a claim for compensation on behalf of another alleged dependent, Joseph McDevitt, then about seven years old, a son of decedent's niece, who it was contended was also a member of decedent's household at the time of his death and dependent upon him. The question was raised by claimant's petition to modify the compensation agreement under the first paragraph of § 413 of the Compensation Act,
This appeal involves a consideration of the Compensation Act in relation to the nature of claims of, or on behalf of, dependent children. Under the act, a child within enumerated classes, is entitled to an award regardless of whether decedent left a wife surviving him. If there be a widow, she may assert the claim of a dependent child and in general is entitled to receive the compensation payable on its behalf. § 307,
Normally, the dependency of children upon a father falls upon his widow after his death and the obligation to support them is assumed by her. For that reason, where the unity of the remaining family continues, compensation for a dependent child is usually made payable to the widow. Except in rare cases any other procedure would serve no purpose and would be unnecessarily cumbersome; a widow ordinarily may be trusted to use the compensation payable on behalf of a child, for its maintenance in its best interests. But, from the plain intent of the Compensation Act, it seems clear that compensation on behalf of a dependent child on the death of an employee is entirely separate and distinct from the widow's compensation, though the claim for the child may be asserted by the widow and the award for the child be made payable to her. The decisions recognize the separate character of the claims. Where the employee is survived by a widow and child or children, provision is made for the maintenance of the latter not by increasing the amount of the award to the widow as such, but by adding to the widow's compensation a stipulated per centum of decedent's wages as compensation to such child or children. Cole v. Keystone Pub.Serv. Co.,
Even if it be conceded, on the doubtful testimony produced, that a provision for compensation on behalf of the additional child was omitted from the agreement by mistake of fact, the right of the child cannot be adjudicated in a proceeding under the first paragraph of § 413 for a review of the agreement entered into by claimant. Though included in one instrument there were in fact two agreements, one for compensation to claimant in her right as widow and the other for compensation on behalf of a dependent nephew. There was no reference in the agreement to the claim of the additional child. The first paragraph of the above section relates to review and modification of existing agreements
and since the agreement entered into by claimant did not relate to the claim of the child in question, there was no existing agreement for review. J. Baluta v. Glen Alden Coal Co.,
The independent claim of the additional child, in this case, asserted more than five years after the death of the employee came too late and is barred by the limitation of § 315 of the act,
For the reasons stated, we think the court erred in entering judgment on the award in this case.
The judgment is reversed and is directed to be entered in favor of defendant. *545