Appeal, No. 111, March T., 1955, from judgment of Court of Common Pleas of Allegheny County, April T., 1954, No. 198, in case of Mary Hyzy, Admrx. of Estate of Joseph E. Hyzy, Dec'd. v. Pittsburgh Coal Company. Judgment affirmed.
Harry Alan Sherman, for appellant.
Harold R. Schmidt, with him Ralph H. German, and Rose, Rose & Houston, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
The plaintiff, as administratrix of the estate of her deceased husband, brought the present action against the defendant company, the husband's employer, for damages for his allegedly wrongful death. The defendant filed preliminary objections, in the nature of a demurrer, to the complaint on the ground that the plaintiff's exclusive remedy was under the Workmen's Compensation Act. The learned court below sustained the objections and dismissed the complaint in an order from which the plaintiff has brought this appeal. The opinion of the learned court below disposed of the plaintiff's contention so completely that the order will be affirmed on the following excerpts therefrom.
"... The complaint recites that the decedent was a coal miner employed by defendant and was fatally injured by a roof fall in the mine while in the course of his employment. Clearly then, since the pleadings establish an employer-employee relationship, the Workmen's Compensation Act would seem to be applicable.
"Plaintiff seeks to avoid the application of the act by a showing that the accident resulted from defendant's neglect of a statutory duty. However, this court can perceive no such distinction in the act. Article III, section 302(a), 77 P.S. Sec. 461, provides that "In every contract of hiring ... expressed or implied ..., it shall be conclusively presumed that the parties have accepted the provisions' of the act unless written notice is given to the contrary. And section 303 of the act provides that acceptance of the act 'shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of the employment, or to any method of determination thereof, other than as provided in Article III of this act. Such agreement shall bind the employer and his personal representatives, and the employee, his or her wife or husband, widow or widower, next of kin, and other dependents.'
"The statute contains no provisions which qualify those quoted above; hence, since plaintiff has not averred that decedent took any action to exclude his employment from falling under the act's provisions, it necessarily follows that he was subject thereto. See Capozzoli v. Stone & Webster Eng. Co., 352 Pa. 183 (1945). The courts have been consistent in holding that the remedy provided by the Workmen's Compensation Act is exclusive of all common law actions. Jackson v. Gleason, 320 Pa. 545; McIntyre v. Strausser, 365 Pa. 507.
"Plaintiff relies on several cases as authority for his contention that an action for Wrongful Death lies. However, even a cursory examination of these cases reveals their inapplicability to the present controversy. In Broch v. Bowser, 376 Pa. 209, a trespass action was permitted because the court found an employer-employee relationship did not exist. The cases of Lincoln v. National Tube Co., 268 Pa. 504, Walkofski v. Lehigh Valley R.R. Co., 278 Pa. 84, and King v. Darlington Brick & Mine Co., 284 Pa. 277, all cited by plaintiff, are clearly distinguished in Welsch v. Pittsburgh Terminal Coal Co., 303 Pa. 405, where the court reiterates the general rule that an employee who had been injured in the course of his employment can recover from his employer only in the manner provided by the Workmen's Compensation Act.
"Neither the Act of May 29, 1901, P.L. 342, 52 P.S. § 598 nor the Act of June 2, 1891, P.L. 176, 52 P.S. § 71 and its supplements gives any aid to plaintiff's position, since these acts only apply to anthracite coal mines. Since the defendant's mine here in question is located in Library, Pennsylvania, ...