Ohman v. Barnes & Tucker Coal Co. "We, The Savings & Trust Company of Indiana, Guardian of Mike Stephen Ohman, Annie Margaret Ohman, Helen Veronica Ohman, Andrew Victor Ohman and Joseph Ohman, and Barnes & Tucker Coal Company, by Maryland Casualty Company, Insurance Carrier, agree on the following facts, but fail to agree on the amount of compensation payable thereunder, and pray the Board to determine the compensation payable: FACTS. 1. Andy Ohman was employed at the Lancashire Mine No. 12, Barnesboro, Pa., of the defendant Company. 3. 2. July 1st, 1918 he sustained an accident while employed. The nature of the accident was that a piece of coal which he was digging fell from the roof and hit the deceased on the head at the base of the skull. 4. July 5th, 1918, death resulted. 5. The average weekly wages were in excess of $20. 6. The following named persons were dependent at the time of his death. (a) Elizabeth Margaret Ohman, widow. (b) Mike Stephen Ohman, son, born September 17th, 1903. (c) Annie Margaret Ohman, daughter, born November 13th, 1904. (d) Helen Veronica Ohman, daughter ,born March 31st. 1906. (e) Andrew Victor Ohman, son, born November 15th 1909. (f) Joseph Ohman, son, born November 20th, 1913. 7. Compensation agreement was entered into between the widow and the defendant and its insurance carrier at No. 621423 and compensation paid to the widow up to July 31st, 1919. 1919. 8. Elizabeth Margaret Ohman, widow, remarried July 12th, 9. The Savings & Trust Company of Indiana was appointed guardian of the said minor children on December 11th, 1919. QUESTIONS FOR THE DETERMINATION OF THE BOARD. In entering into a supplemental agreement what shall be the compensation payable to the children respectively or their guardian. The Defendant contends that on account of the remarriage of the mother the status has changed and that under the provisions of the Compensation Act of 1915 for the first child there is payable Ohman v. Barnes & Tucker Coal Co. fifteen per cent. of $20 and ten per cent. additional for each additional child, with a maximum of fifty percent. The guardian for the children contends that there shall be payable twenty-five per cent. for the first two children and ten per cent. for each additional child with a maximum of sixty per cent. until the expiration of three hunder weeks from the date of of the death, or 145 days thereafter. This question is submitted for determination by the Board as well as the question at what time the payments to the guardian. of the children begin; July 31st, 1919, time to which payment had been made to the widow, or July 12th, 1919, time when the widow remarried. It is further agreed by the parties in interest that without further notice the petition may be referred to the Board for immediate disposition. The Savings & Trust Company of Indiana. Guardian of Mike Stephen Ohman, Annie Section 307 of the Workmen's Compensation Act of 1915 in part reads: "In case of death, compensation shall be computed on the following basis, and distributed to the following persons: To the child or children, if there be no widow nor widower entitled to compensation, twenty-five per centum of wages of deceased, with ten per centum additional for each child in excess of two, with a maximum of sixty per centum, to be paid to their guardian Ohman v. Barnes & Tucker Coal Co. Should any dependent of a deceased employe die, or should the widow or widower remarry the right of such dependent, or such a widow or widower to compensation under this section shall cease. If the compensation payable under this section to any person shall for any cause, cease, the compensation to the remaining persons entitled thereunder, shall thereafter be the same as would have been payable to them had they been the only persons entitled to compensation at the time of the death of the deceased . . The Board decided in the case of Pauline Gass v. Aetna Chemical Company, 5 Dept. Reports, Page 2447: "The fact that the widow may have deceived the defendant and received compensation until July 12, 1919, did not give warrant to the Referee nor to the Board on an appeal to shift or change the Defendant's liability to the children of the deceased employe, the other dependents, to any time except that fixed in the act when compensation payable to the widow ceased. to-wit: February 14, 1919 (which was the date of remarriage.) We take it that no act of the widow could in any way prejudice the rights of the children." The Board decided in the cases of Nicholas Morocca v. Felix A. Tomalina, and Mrs. Edythe N. Lupfer v. Baldwin Locomotive Works, not yet reported: That where death occurs within the fourteen day waiting period, compensation begins fourteen days after the date of the accident and not fourteen days after the death. Therefore, in conformity with the above, we hold that compensation to the widow ceased July 12, 1919, the date of her re-marriage. That upon her re-marriage, the guardian is to be paid the rate of compensation that would have been paid if there was no widow in the first instance to-wit, twenty-five (25%) per cent. of Twenty ($20.00) Dollars per week for the first two children, and ten (10%) per cent. for each additional child, with a maximum of sixty (60%) per cent.; that the three hundred week period for payment of compensation is to begin fourteen days after the date. of the accident; that the balance of the three hundred weeks due is to begin and include July 13, 1919. It is therefore ordered that a supplemental agreement be entered into accordingly. Court of Common Pleas of Montgomery County Narberth Building & Loan Ass'n. v. Sylvester Property of defendant was sold upon an execution issued on a mortgage which was a second lien. Sheriff filed his schedule of distribution, to which schedule the third lien holder filed exceptions, and praying that the Court would decree. a distribution of the funds in the hands of the Sheriff. It was held that notwithstanding there are some lower courts who have decrced a distribution of the fund without the same being paid into Court, the general practice seems to be that money should be paid into Court before distribution is decreed by the Court, therefore, the exceptions to the schedule of distribution are dismissed, with leave, however, for the exceptant to rule that the money be paid into Court. No. 8, April Term, 1919. Sur. Exceptions to Sheriff's Schedule of Distribution, J. Ambler Williams and Fletcher W. Stites, Attorneys for Plaintiff. George C. Klauder, Attorney for Execptant. Opinion by Miller, J., April 5, 1920. The defendant owned real estate in this county which was subjeet to three liens: 1. A judgment entered by confession in favor of Hartford Accidqut and Indemnity Co. on December 7, 1915, for $900; 2. A mortgage, dated July 11, 1917, and recorded on the following day, to Narberth Building and Loan Association of $5200; and, 3. A judgment entered on August 12, 1918, on a transcript from Court of Common Pleas No. 5 of Philadelphia County in favor of Mauda M. Tweed for $5000. The mortgage, or second lien, was afterwards foreclosed and the premises were sold by the sheriff on an alias levari on October 29th, 1919, for $9000. The sale, of course, discharged all the liens. His schedule distributed the proceeds as follows: The execution plaintiff has since been paid in full, whereby a balance of but $3064.28 of the proceeds, continues in the sheriff's hands. It has not been paid into court. VOL. XXXVI-NO 16 Narberth Building & Loan Ass'n. v. Sylvester Mauda M. Tweed, who questions the schedule and disputes the right of Hartford Accident and Indemnity Company to participate in the distribution, has filed exceptions, to which the Company makes answer squarely denying the authority of the court to make distribution of the fund upon mere exceptions filed to the schedule or return. The exceptant pray only that the return be set aside and such order made "as will result in a proper distribution of the funds as required by law." By the amendatory act of June 4, 1901, P. L. 357, extending to the entire commonwealth that of April 10, 1862, P. L. 364, which was originally local to Allegheny County, we are required to hear and determine the exceptions "as now provided by law in case of disputes as to the distribution of the proceeds of sheriff's sales," and the method then provided by law for hearing and determining such disputes was well settled. The claimant, in the absence of action by the sheriff himself, ruled the money into court and asked for the appointment of an auditor to make distribution, or, if any material fact connected with such distribution, was in dispute, any person in interest could make affidavit and ask for an issue to try it in court. Moore v. Dunn & Fell, 147 Pa. 359; Peoples' Savings Bank v. Mosier, 199 Pa. 375. The acts of June 16, 1836, P. L. 777 and April 20, 1846, P. L. 411, both contemplated and required that, as a necessary prerequisite to the court's assuming jurisdiction the money arising from the sale should have been paid into court, and it was not until that of June 28, 1871, P. L. 1376, was passed that this requirement was waived at all and then only in the single contingency that the parties in interest should assent to the court's taking cognizance of the matter, notwithstanding the fund had not been paid in. Courts have no authority to decree distribution of a fund not within their grasp without the assent of the parties in interest. Kauffman's Appeal, 70 Pa. 264; Semple, app v. Semple, 193 Pa. 630; Constine's Appeal, 1 Grant 242. And the act of 1901 made no change in this regard. The exceptant must still ask for a rule to pay the money into court and for an auditor or for an issue: Jarrett v. Walsh, 20 M. L. R. 147. Judge MacFarlane, in Clark v. Cartwright, 62 Pitts. L. J. 320. says this "may be the better practice" The money was ruled inte court and an auditor appointed in Young, to use, v. Brady, 250 Pa 584. Also see Shook's Estate, 21 Pa. D. R. 662. |