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COPELLO v. NEW SHAWMUT MINING COMPANY (ET AL. (07/21/55)

July 21, 1955

COPELLO
v.
NEW SHAWMUT MINING COMPANY (ET AL., APPELLANT).



Appeal, No. 9, March T., 1955, from order of Court of Common Pleas of Elk County, Oct. T., 1948, No. 60, in case of Joseph Copello v. New Shawmut Mining Company and Coal Operators Casualty Company. Order affirmed. Appeal by claimant from decision of Workmen's Compensation Board refusing award.

COUNSEL

Robert W. Smith, Jr., with him Smith, Best & Horn, for appellant.

George Jerko, for appellee.

Before Hirt, Ross, Wright, Woodside, and Ervin, JJ. (rhodes, P.j. and Gunther, J., absent).

Author: Ross

[ 179 Pa. Super. Page 228]

OPINION BY ROSS, J.

This is a workmen's compensation case in which the claimant, Joseph Copello, "as the result of an explosion which occurred while rock was being blasted in claimant's working place, ... sustained the entire loss of his left eye, and impairment of the vision of the right eye, the amount of which was not determined at the time of the hearing".*fn1 The compensation authorities refused compensation on the ground that "the accident occurred as the result of claimant's violation of the Bituminous Mine Law, due to his failure to electrically ignite fuse which was being used to blast rock in the working place".*fn2 The court below, after concluding that there was not sufficient competent evidence to sustain the fifth finding of fact - the only one at issue-

[ 179 Pa. Super. Page 229]

    reversed the board and ordered the case remanded for further proceedings. The employer's insurance carrier has appealed from this order.

The sole problem is whether the defendant sustained by competent evidence its burden of showing that the injury resulted from claimant's violation of the Bituminous Mining Law, Act of June 9, 1911, P.L. 756, Art. XVI, sec. 1, as amended July 1, 1937, P.L. 2486, sec. 33, 52 PS sec. 1221, which prohibits the use in any mine of "blasting fuse" for igniting or firing explosives unless the fuse is ignited electrically. If the injuries were so caused by claimant's violation, then, of course, he would be barred from receiving compensation. Sec. 30(a) of the Workmen's Compensation Act, 77 PS sec. 431, provides in part as follows: "No compensation shall be paid when the injury ... is caused by the employe's violation of law, but the burden of proof of such fact shall be upon the employer." Defendant was required to show this violation by evidence approximating that required in criminal cases (Bucci v. Lincoln Coal Co., Inc., 140 Pa. Superior Ct. 538, 14 A.2d 359; Haas v. Brotherhood of Transportation Workers, 158 Pa. Superior Ct. 291, 44 A.2d 776), though not necessarily beyond a reasonable doubt. Yowkoski v. Hudson Coal Co., 159 Pa. Superior Ct. 256, 48 A.2d 80.

On the day of the injury, August 1, 1946, claimant and several others were working in the defendant's mine. Around 2:45 p.m. claimant and his brother, George Copello, drilled, for the purpose of blasting, two holes in some rock in the back entry. John Mosier, one of the employes, prepared the explosives and blasting fuse which were to be used. He made these preparations about 40 feet away from where claimant was working. When he returned with the prepared explosives, another fellow employe, Nello Gavazzi, remarked

[ 179 Pa. Super. Page 230]

    that the fuses which Mosier had attached to the explosives were illegal in that they were to be set off by fire rather than electrically. Mosier, nevertheless, placed these explosives into the drilled holes and tamped them. The other employes except claimant and Mosier meanwhile left the area. Mosier ignited one of the fuses with his cigarette lighter and turned toward claimant, who was a short distance away, handed him the lighter and they both walked up the heading for a distance of about 100 feet. The first explosion occurred a short time thereafter. After waiting several minutes claimant proceeded back to where the explosives were, admittedly for the purpose of firing the second short. It was then that the second explosion ...


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