Appeal from judgment of Court of Common Pleas of Schuylkill County, May T., 1964, No. 320, in case of Helen Herman v. Kandrat Coal Company et al.
David S. Shrager, with him Donald J. Farage and William J. Krencewicz, for appellant.
Arthur E. Ricchiuti, Special Assistant Attorney General, with him Clyde M. Hughes, Jr., Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Howard G. Stutzman, for coal company, appellee.
Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.
[ 205 Pa. Super. Page 119]
The Court of Common Pleas of Schuylkill County affirmed the decision of the Workmen's Compensation Board, in an occupational disease claim, which denied benefits to the claimant-appellant, Helen Herman, widow, on the ground that the decedent, Carl Herman, was not an employee under the Act.
This claim arose under The Pennsylvania Occupational Disease Act of 1939, P. L. 566, as amended, 77 PS § 1201. The claimant's husband, Carl Herman, died on April 17, 1957, as a result of anthracosilicosis. The Referee on March 13, 1963 awarded benefits. On appeal, the Board reversed the Referee on March 19, 1964 and denied benefits on the ground that there was no employer-employee relationship. The court below affirmed and this appeal followed.
The decedent was employed in the anthracite mines from 1912 until April 27, 1956. He was disabled as a result of anthracosilicosis and died on April 17, 1957. The Board found as a fact that his last exposure to a silicate hazard was by virtue of work performed in and about the mine of the defendant, K. & H. Coal Co., from December 1950, until April 27, 1956.
The K. & H. Coal Co., was a mining venture entered into by the decedent and Victor Kandratavich and the Board found that ". . . the decedent was a partner in the mining venture operating as K. & H. Coal Company, with Victor Kandratavich." And the Board concluded that ". . . since decedent was a partner in the firm of K. & H. Coal Co., his dependent widow is not entitled to benefits under the Occupational Disease Act."
As the decision of the Board is against the claimant, the question before the reviewing court is whether there was a capricious disregard of competent evidence and whether the findings and conclusions are consistent.
[ 205 Pa. Super. Page 120]
create some rather bizarre partnership situations, any remedy, if needed, must ...