Appeals, Nos. 239 and 250, October T., 1955, from order of Court of Common Pleas of Berks County, Feb. T., 1955, No. 31, in case of Rinaldo Ciabattoni v. Birdsboro Steel Foundry & Machine Company and Pennsylvania Manufacturers' Association Casualty Insurance Company et al. Order reversed. Appeal by claimant to common pleas from decision of Workmen's Compensation Board refusing award under Occupational Disease Act. Appeal sustained and order entered remitting record, opinion by SHANAMAN, J. Defendants appealed.
John D. Glase, with him Stevens & Lee, for employer and insurance carrier, appellants.
C.A. Whitehouse, Associate Counsel, with him Ralph H. Behney, Counsel, and Herbert B. Cohen, Attorney General, for Commonwealth, appellant.
Mark C. McQuillen, with him Angelo J. Baro, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, and Ervin, JJ. (woodside, J., absent).
[ 179 Pa. Super. Page 540]
Rinaldo Ciabattoni seeks compensation under the Pennsylvania Occupational Disease Act.*fn1 On January 4, 1954, he filed a claim petition containing the following averment: "I became totally disabled as the result of silicosis on 22nd day of December 1952". Answers were filed by the employer and by the State Workmen's Insurance Board asserting that, since the action was not brought within one year from the date of disability, the claim was barred by the statute of limitations as set forth in section 315 of the Act.*fn2 The referee made, inter alia, the following findings: "4. Your Referee finds as a fact that claimant was totally disabled, as a result of silicosis, on December 22, 1952, and did not file a claim for compensation until January 4, 1954. 5. Your Referee finds as a fact that claimant has not filed his Claim Petition within the period provided under the Occupational Disease Act, as amended". The referee therefore disallowed the claim. Upon appeal to the Workmen's Compensation Board the decision of the referee was affirmed. A further appeal was taken to the Court of Common Pleas of Berks County, which
[ 179 Pa. Super. Page 541]
tribunal concluded that the statute of limitations did not commence to run until the claimant had knowledge of the reason for his disability, and that there should be an express finding in that regard. The court therefore remitted the proceedings to the Board "for further hearing, findings of fact, and conclusions of law". These appeals followed.
Appellee has moved to quash, citing Wilk v. Budd Co., 174 Pa. Supeior Ct. 108, 100 A.2d 127. In that case the testimony before the Board was inadequate to enable it to reach a just conclusion. We therefore held that an order of the Court of Common Pleas remitting the record to the Board was interlocutory and not appealable. However, the case at bar presents a different situation. Here the order directs the Board to make "an express finding of the time when the claimant became conscious that he was totally disabled by silicosis". The effect of the order was that, if claimant first became conscious of the reason for his disability within one year prior to filing his petition, the Board should make an award, regardless of the date, however remote, upon which the disability actually began. Such order was clearly erroneous as a matter of law, and the appeal was properly taken therefrom. See Messikomer v. Baldwin Locomotive Works, 178 Pa. Superior Ct. 537, 115 A.2d 853.
The question presented by this appeal may be thus stated: Where a claimant becomes totally disabled, but has no knowledge of the fact that his disability is the result of an occupational disease until the limitation of one year set forth in section 315 has expired, is his claim for compensation barred? As previously ...