Davis v. Welsbach Corp.

Dissenting Opinion by

Watkins, J.:

I would quash the appeal as being interlocutory. Although in agreement with the majority that the court below properly decided the question of law as to an accident by holding that the Board had capriciously disregarded the competent evidence of an accident and misapplied the law to those facts, it is impossible to determine the fact of dependency in the present state of the record, without the taking of additional testimony as contemplated by the order of the court below.

Section 30.7 of the statute provides, inter alia: “5. If there be neither widow, widower nor children entitled to compensation, then to the father or mother, if dependent to any extent upon the employe at the time of the accident. . . .” (Italics, writers)

How is it possible to determine dependency “to any extent” without going into the cost of the support of the parents? We agree that the evidence of contributions is not enough, of itself, but in this case there was evidence that the contributions made by the deceased son were necessary for the parents’ medical and drug bills. In DiCampli v. General Electric Co., 193 *527Pa. Superior Ct. 427, 165 A. 2d 255, cited in the majority opinion, where this Court reversed the Board’s allowance of partial dependency there was clear testimony of the cost of the household expenses which were less than two-thirds of the take-home pay of the husband, all of which he contributed to the support of his wife and family. This record is silent concerning the household expenses of this family.

I agree that dependency is hot affirmatively established by mere proof of receipt of contributions. Icenhour v. Freedom Oil Works Co., 145 Pa. Superior Ct. 168, 20 A. 2d 817, cited in the majority opinion, so held but in that case the husband was the decedent and the dependency involved was that of an estranged widow and this Court felt that the compensation authorities were confused between dependency and support, but again there was evidence of the household expenses of the wife. The Icenhour case first came before the Superior Court in 136 Pa. Superior Ct. 318, and this Court returned the record for remittal to the Board for further consideration concerning dependency and it was only after this further consideration and additional findings and after a second argument before this Court that the matter was concluded by Icenhour v. Freedom Oil Works Co., 145 Pa. Superior Ct.. 168, 20 A. 2d 817.

The gist of this case is whether the parents are “dependent to any extent” upon the $20 monthly contribution of the decedent and it is impossible to determine this without the testimony as to the household expenses. The appeal should be quashed as interlocutory so that the remand order of the court below for the taking of further testimony in regard to the issue of partial dependency may be carried out.

Montgomery and Flood, JJ., join in this dissenting opinion.