Appeal from judgment of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1964, No. 2332, in case of Mrs. Lessie Moore, widow of Matthew Moore, deceased, v. Dodge Steel Company et al.
James Francis Gannon, with him King and Gannon, for appellant.
Earl Thomas Britt, with him Paul H. Ferguson and Frederick W. Anton, III, for appellee.
Joseph J. Cohen, Special Assistant Attorney General, Clyde M. Hughes, Jr., Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J. Dissenting Opinion by Watkins, J.
[ 206 Pa. Super. Page 243]
This appeal involves the construction of Section 315 of The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 P.S. 1415. It will be necessary to set forth the factual and procedural history in some detail.
Matthew Moore was employed as a sandblaster by the Dodge Steel Company, Philadelphia, Pennsylvania. On February 24, 1960, Moore filed claim petition No. 158,946 alleging that he became totally disabled on June 5, 1959, as the result of silicosis. Answers were filed by the employer and by the Commonwealth. On January 25, 1961, before any hearing had taken place,
[ 206 Pa. Super. Page 244]
Moore died. On September 10, 1962, more than sixteen months after the date of her husband's death, fatal claim petition No. 171,401 was filed by the widow, Lessie Moore. After taking testimony at hearings on June 26, 1963, and January 30, 1964, the Referee made two awards under date of March 19, 1964. On petition No. 158,946 the employer and the Commonwealth were ordered, on a 60-40 percentage basis, to pay compensation to Matthew Moore for total disability from June 19, 1959, to January 25, 1961. On petition No. 171,401 the employer and the Commonwealth were ordered, on the same percentage basis, to pay compensation to Lessie Moore for total dependency beginning January 25, 1961, for a period of 350 weeks. Both the employer and the Commonwealth appealed to the Board from the award on petition No. 171,401. No appeals were taken from the award on petition No. 158,946. The Board affirmed the Referee's decision. The employer appealed to the Court of Common Pleas of Philadelphia County at No. 2531 in C. C. P. No. 6, and the Commonwealth appealed at No. 2332 in C. C. P. No. 2. By stipulation of counsel, approved by President Judge Gold and by Judge Doty, the two appeals were consolidated and heard in C. C. P. No. 2. On January 25, 1965, Judge Gleeson reversed the Board's decision, and judgment was thereafter entered for the defendants. Lessie Moore has appealed to this court.
The award to the widow on petition No. 171,401 was based by the Referee on the following finding, affirmed by the Board: "9. The claim petition filed by the decedent during his lifetime was a valid claim, and the fatal claim petition filed by the claimant is considered as a continuation of the claim of her deceased husband".*fn1 The position of the employer and the Commonwealth
[ 206 Pa. Super. Page 245]
is that the fatal claim petition is barred by the provisions of Section 315 of The Pennsylvania Occupational Disease Act which presently reads in pertinent part as follows: "In cases of death all claims for compensation shall be forever barred, unless, within sixteen months after the death, the parties shall have agreed upon the compensation payable under this article, or unless, within sixteen months after the death, one of the parties shall have filed a petition as provided in article four hereof. Where, however, payments of compensation have been made in any case, said limitations shall ...