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CIABATTONI v. BIRDSBORO STEEL FOUNDRY & MACHINE COMPANY. (09/24/56)

September 24, 1956

CIABATTONI, APPELLANT,
v.
BIRDSBORO STEEL FOUNDRY & MACHINE COMPANY.



Appeals, Nos. 219 and 220, Jan. T., 1956, from judgment of Superior Court of Pennsylvania, oct. T., 1955, Nos. 239 and 250, reversing order of Court of Common Pleas of Berks County, Feb. T., 1955, No. 31, in case of Rose Ciabattoni, Administratrix of Rinaldo Ciabattoni, deceased v. Birdsboro Steel Foundry & Machine Company and Pennsylvania Manufacturers' Association Casualty Insurance Company, and State Workmen's Insurance Board. Judgment reversed. Same case in Superior Court: 179 Pa. Superior Ct. 538. 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 to the Superior Court, which reversed the order of the court below. Appeal by plaintiff to Supreme Court allowed.

COUNSEL

David B. Skillman, with him Mark C. McQuillen, for appellant.

John D. Glase, with him Stevens & Lee, for appellees.

Richard D. Holahan, Associate Counsel, with him Ralph H. Behney, Counsel and Herbert B. Cohen, Attorney General, for Commonwealth of Pennsylvania, appellee.

Before Stern, C.j., Jones, Chidsey, Musmanno and Arnold, JJ.

Author: Jones

[ 386 Pa. Page 180]

OPINION BY MR. JUSTICE JONES

The claimants petition for compensation under The Pennsylvania Occupational Disease Act of June 21, 1939, P.L. 566, 77 PS ยง 1201 et seq., was dismissed by the referee on the ground that it was not filed within the time limited therefor by the Act. On exceptions, the compensation board affirmed the referee's action. The claimant appealed from the board's decision to the court of common pleas which reversed in an order remitting the matter to the board for specific findings as to the date when the claimant's total disability from silicosis became known or should have been known to him. The corporate employer and its insurance carrier at once appealed to the Superior Court from the common pleas court's order, as did also the Commonwealth of Pennsylvania acting on behalf of the State

[ 386 Pa. Page 181]

Workmen's Insurance Board. The Superior Court reversed and entered judgment for the appellants: 179 Pa. Superior Ct. 538, 543, 118 A.2d 229. We granted an allocatur on the claimant's petition, and the matter is now before us on appeals by the administratrix of the claimant who has died in the meantime.

The referee found "... 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" and "... that claimant has not filed his claim petition within the period provided by the Occupational Disease Act, as amended." Section 315 of the Act provides that "In cases of disability all claims for compensation shall be forever barred, unless, within one year after the disability begins, ... one of the parties shall have filed a petition as provided in article four hereof", which Article provides in Section 403 (a) that "All proceedings before the board or any referee ... shall be instituted by petition addressed to the board." It was on the basis of these findings that the referee concluded that the claim was filed too late and dismissed the petition.

The claimant contended below, and it is now his personal representative's contention here, that the bar to the claim, as prescribed by Section 315 of the Act, did not commence to run until the claimant knew or should have known that his total disability was due to silicosis. And, there is no evidence in the record to support a finding that the claimant's total disability on December 22, 1952, was due to silicosis. That he did become totally disabled on that date is a finding which there is evidence to support. The company's doctor, Dr. Christ, who ...


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