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PEKOROFSKY v. GLEN ALDEN COAL CO. ET AL. (07/17/52)

July 17, 1952

PEKOROFSKY
v.
GLEN ALDEN COAL CO. ET AL.



COUNSEL

C. A. Whitehouse, Asst. Counsel, Pottsville, S. H. Torchia, Asst. Counsel, Philadelphia, Ralph H. Behney, Counsel, Harrisburg, Robert E. Woodside, Jr., Atty. Gen., for appellant.

J. H. Oliver, Francis B. Gelder, Scranton, for Glen Alden Coal Co.

Before Rhodes, P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Ross

[ 171 Pa. Super. Page 98]

ROSS, Judge.

This case arose under the Pennsylvania Occupational Disease Act. Claimant, Joseph Pekorofsky, was last exposed to a silica hazard on June 24, 1947 when employed by the Glen Alden Coal Company. He became totally disabled by reason of anthraco-silicosis on October 21, 1947. It is admitted that the claimant is entitled to compensation. The contest is between the employer and the Commonwealth, and the only question is whether the compensation payments should be apportioned between employer and Commonwealth on an 80%-20% basis or on a 90%-10% basis. The referee directed Glen Alden to pay 90% of the compensation and the Commonwealth to pay 10%; the board reduced the employer's share to 80% and increased that of the Commonwealth to 20%; the Court of Common Pleas of Lackawanna County dismissed the Commonwealth's appeal, thus holding that compensation should be apportioned on an 80%-20% basis. This appeal by the Commonwealth followed.

The case turns upon an interpretation of section 308(a) of the Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, No. 284, 77 P.S. ยง 1408(a), which provides in part as follows: '(a) When compensation is awarded because of disability or death

[ 171 Pa. Super. Page 99]

    caused by silicosis, anthraco-silicosis, asbestosis, or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, the compensation for disability or death due to such disease shall be paid jointly by the employer and the Commonwealth, in accordance with the following provisions: If disability begins * * * between October 1, 1945, and September 30, 1947, the employer eighty per centum and the Commonwealth twenty per centum; if between October 1, 1947, and September 30, 1951, the employer ninety per centum and the Commonwealth ten per centum.' The appellee-employer contends that the last day of exposure fixed the Commonwealth's liability as well as its own. If this contention is sound, it follows, of course, that appellee's liability was properly limited to 80% of the compensation benefits since the day of last exposure fell within the period October 1, 1945 and September 30, 1947. It is the Commonwealth's contention, on the other hand, that when the statute says 'if disability begins' between certain dates it discloses the intention of the legislature to fix the respective obligations of employer and Commonwealth as of the date when the claimant became totally disabled. The date of total disability in the case at bar fell within the period October 1, 1947 and September 30, 1951, a period during which the obligation of the Commonwealth was limited to 10% of the compensation payments.

Primarily it would seem that the appellee has a difficult obstacle to overcome because it would have been a simple matter for the legislature to insert the phrase 'if the last exposure occurs' where it used 'if disability begins' and thus render its intention clear beyond question. This obstacle the appellee seeks to overcome by directing attention to cases decided by this Court, cases which the appellee contends stand for the proposition that the last date of exposure prior to the beginning of

[ 171 Pa. Super. Page 100]

    total disability fixes the liability of both the employer and the Commonwealth.

The appellee cites Polk v. Western Bedding Co., 145 Pa. Super. 142, 20 A.2d 845. The Polk case was a workmen's compensation case in which the only question involved was whether claimant's admitted right to compensation for her husband's death was to be computed according to the schedule for compensation in force when he was injured or according to the schedule in force at the time of his death. We held that the schedule in force at the time of the accident ...


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