20 CFR 404.1110
Yount v. Weinberger, 375 F.Supp. 941 (W.D.Pa., 1974)
MCCUNE, District Judge: The only issue before the court in this appeal from a decision of the Social Security Administration is whether the plaintiff ("claimant") was the "parent" of the deceased wage earner, Norman Yount, for purposes of § 202(h)(3) of the Social Security Act, 42 U.S.C. § 402(h)(3).
We find that she was not. We will, therefore, grant the Secretary's motion that we enter a summary judgment in his favor.
The plaintiff has filed suit in an attempt to obtain parent's benefits as provided by § 402(h)(1) of the Act, 42 U.S.C. § 402(h)(1).
To receive parent's benefits under § 402(h)(1) a claimant must prove four elements:
The parties agree that the claimant has established the first three of these elements. It is the fourth element which is in dispute.
The Act defines "parent" in § 216(h)(2), 42 U.S.C. §416(h)(2), as follows:
The legal question before the court is whether the claimant is the decedent's "parent" under the Pennsylvania Intestate Act of 1947, 20 P.S. § 1.3, et seq. If she is then she is a "parent" for purposes of the Social Security Act and is entitled to parent's benefits.
There is no dispute about the mutual affection between Norman Yount and his "mother." The administrative record contains evidence which clearly establishes the depth and mutual warmth of the relationship. The record on this point has been fairly summarized in the defendant's brief.
The Administrative Law Judge found that the claimant stood in loco parentis to Norman Yount. Obviously that finding cannot be faulted.
He ruled in addition, however, that one standing in loco parentis is not a "parent" under the Act because under Pennsylvania law a person in loco parentis is not entitled to intestate distribution. We think that ruling was correct.
The Pennsylvania statute is silent on the point; and we have been referred to no cases interpreting the statute which holds that a person in loco parentis is a parent for purpose of intestate distribution. Accordingly, we will treat this as typical Erie problem and rule as we expect the Pennsylvania Supreme Court would rule if called on to interpret the intestacy statute.
While there is no authority on whether a person in loco parentis is entitled to intestate distribution on the death of a "child," there is precedent for the proposition that a "child" is not entitled to intestate distribution upon the death of the person who stood in loco parentis to him. Benson v. Nicholas, 246 Pa. 229 (1914); Benson v. Nicholas, 254 Pa. 55 (1916); Evan's Estate, 47 Pa. Super. 196 (1922). The cases do not use the term in loco parentis, but the effect is the same. The Pennsylvania Law is clear: There must be a legally effective adoption before a "child" may inherit from a "parent."
In Evan's Estate the appellant claimed the entire estate of the decedent as an adopted child. She had been adopted by a duly executed deed of adoption (as provided by the Act of April 2, 1872, P.L. 31) and raised by the decedent as if she were his child. The deed, however, was never recorded and the Pennsylvania Superior Court ruled that the adoption was not legally effective. The Court concluded: "It is clear, therefore, that, if there was not a legal adoption by virtue of that instrument (an executed but unrecorded deed of adoption), the appellant's claim to the estate of the decedent must fail." 47 Pa. Super., at 201.
In the first Benson case, the plaintiff filed a bill in equity seeking a declaration that she was the legally adopted child of her "father," James B. Nicholas, who had died intestate and that she was entitled to a share of his estate. The Pennsylvania Supreme Court affirmed the trial court's dismissal of the bill and held she had not proved the adoption and was not entitled, therefore, to share in her "father's" estate, 246 Pa., at 231. The Court stated, in addition, that the proper way to assert a claim to the decedent's real estate was an ejectment action.
The plaintiff then filed a bill of ejectment to recover the real estate owned by James B. Nicholas arguing that she was entitled to it under the terms of a parol agreement to adopt her. The trial court directed a verdict for the defendant and the plaintiff appealed. The Pennsylvania Supreme Court affirmed stating at 254 Pa., 56-7:
Under Pennsylvania law a "child" cannot share in the intestate distribution of the estate of the person who stood in loco parentis. It follows that a person standing in loco parentis cannot share in the intestate distribution of the estate of the "child," and we think the Pennsylvania courts would make that ruling.
Since under the Pennsylvania intestacy statute the plaintiff, even though a person standing in loco parentis, is not a "parent," she cannot be considered a "parent" as defined in § 416(h)(2) of the Social Security Act and is not entitled to parent's benefits under § 402 of the Act.
Accordingly, the Secretary's motion for summary judgment will be granted and judgment will be entered in his favor.
 (3) As used in this subsection, the term "parent" means the mother or father of an individual, a stepparent of an individual by a marriage contracted before such individual attained the age of sixteen, or an adopting parent by whom an individual was adopted before he attained the age of sixteen. 42 U.S.C. § 402(h)(3).
 This suit has been filed pursuant to 42 U.S.C. § 405(g) which gives this court jurisdiction to review a final decision of the Secretary of Health, Education and Welfare. The decision of the Administrative Law Judge denying plaintiff parent's benefits became the final decision of the Secretary when the Appeals Council refused review on August 15, 1973.
 The plaintiff relies principally on Lyerly v. United States, 162 F.2d 79 (10th Cir. 1947), for the proposition that persons standing in loco parentis fall within the definition of "mother" and "father." On the basis of Lyerly the plaintiff argues that we should construe "parent" as used in § 402 to include those standing in loco parentis without referring to either § 416 or Pennsylvania intestacy law.
Lyerly was a suit involving the distribution of the proceeds of the decedent's National Service Life Insurance Policy. The court awarded the proceeds to the persons standing in loco parentis to the insured.
The plaintiff's reliance on Lyerly is misplaced for two reasons. First, there the court interpreted the Congress' use of the words "mother" and "father" in light of a statutory amendment enacted within months of the insured's death which specifically stated that the terms encompassed not only an insured's natural parents but those standing in loco parentis, as well. Second, § 416(h)(2) of the Social Security Act establishes the process by which "parent" must be defined. We cannot construe "parent" in § 402 of the Act without referring to § 416 for guidance. A statute must be read in pari materia, as an integrated whole, so as to give full effect to the legislative intent.
 "§ 1.3 Shares of others than surviving spouse
The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, shall descent in the following order:
 Erie Railroad Co. v. Tompkins, 204 U.S. 64 (1938).
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