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PAGLIAROLI v. SHENANGO PENN MOLD CO. ET AL. (06/10/59)

June 10, 1959

PAGLIAROLI
v.
SHENANGO PENN MOLD CO. ET AL., APPELLANTS.



Appeal, No. 68, April T., 1959, from judgment of County Court of Allegheny County, No. A-1244 of 1958, in case of Antonio Pagliaroli v. Shenango Penn Mold Company et al. Judgment affirmed.

COUNSEL

Leonard P. Kane, Jr., with him Brandt, Riester, Brandt & Malone, for employer and carrier, appellants.

Benjamin Diamond, Special Assistant Attorney General, with him Wilson H. Oldhouser, Assistant Attorney General, David C. Harrison, Deputy Attorney General, and Anne X. Alpern, Attorney General, for Commonwealth, appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 189 Pa. Super. Page 498]

OPINION BY WRIGHT, J.

Antonio Pagliaroli filed a claim petition under the provisions of The Pennsylvania Occupational Disease Act*fn1 alleging total disability as the result of silicosis. The Referee made an award, of which he directed that the employer should pay sixty percent and the Commonwealth should pay forty percent. The employer appealed to the Workmen's Compensation Board on the ground that liability for the award should be placed entirely upon the Commonwealth. The Board affirmed the decision of the Referee. Upon appeal to the County Court of Allegheny County, that tribunal affirmed the Board's decision and entered judgment accordingly. This appeal followed.

The record discloses that claimant was employed by the Shenango Penn Mold Company from June 15, 1942 until June 2, 1954, a period of approximately twelve years. His duties as a chipper involved the use of an air hose inside the molds, with resulting exposure to silica dust. Claimant had previously been employed by the Valley Mold Company for twenty-seven years, during the last ten years of which period he was doing the same type of work under similar exposure conditions. Claimant testified that he was in good health when he stopped working for the Valley Mold Company, and that he then had no chest pains or shortness of breath. Claimant first consulted his family physician

[ 189 Pa. Super. Page 499]

Dr. DeSantis, late in 1953. He was sent to the Sharon General Hospital in June 1954, at which time a diagnosis of silicosis was made. On August 29, 1956, and again on October 6, 1956, claimant was examined by Dr. Leffingwell, a specialist in diseases of the chest, who testified that claimant was totally disabled as the result of silicosis. Dr. Biggins testified for the employer that he last examined claimant on July 10, 1956, and that claimant was totally disabled from silicosis. It is therefore apparent that claimant's right to an award is not questioned on this appeal. The dispute is between the employer and the Commonwealth as to where the liability to pay the award rests.

Appellants' statement of the questions involved is as follows: "1. Is there enough substantial and competent testimony in the record to prove, within the meaning of Section 301 (g) of the Pennsylvania Occupational Disease Act, that claimant's disability is the result of his last exposure with the defendant? 2. Where there is no testimony that the incidence of claimant's disease did not occur during his exposure to a silica hazard with a previous employer, should liability for payment of compensation be imposed solely upon the Commonwealth in accordance with Section 301 (g) of said Act?" These questions may properly be treated together, the pivotal issue being whether there is sufficient evidence in the record upon which the compensation authorities could base their finding that claimant's disability was the result of his last exposure.

The statute contains two provisions which are here pertinent. Section 308 (77 P.S. 1408) reads as follows: "(a) When compensation is awarded because of disability or death caused by silicosis, anthraco-silicosis, asbestosis, or any other occupational disease which developed to the point of ...


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