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PUDLOSKY v. FOLLMER TRUCKING COMPANY ET AL. (11/10/65)

decided: November 10, 1965.

PUDLOSKY
v.
FOLLMER TRUCKING COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Luzerne County, Oct. T., 1964, No. 211, in case of Anna Pudlosky, widow of Anthony Pudlosky, deceased, v. Follmer Trucking Company.

COUNSEL

E. C. Marianelli, for appellant.

Joseph P. Olexy, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Wright, J. Montgomery, J., agrees that the order of the lower court must be reversed but he would remand the case to the Board for further medical testimony as to the cause of death.

Author: Wright

[ 206 Pa. Super. Page 452]

This is a workmen's compensation case. The Referee made an award. The Board reversed the Referee, and dismissed the claim petition. The Court of Common Pleas of Luzerne County reversed the Board, and in effect reinstated the Referee's award. This appeal followed. The factual situation appears in the following excerpt from the opinion below:

"Anna Pudlosky is the widow of Anthony Pudlosky, deceased, who on March 22, 1961, was employed as a truck driver by the defendant. He was in apparent good health with no history of coronary disease. As a matter of fact, the decedent was examined by Dr. Robert T. Gildea nine days prior to his death and was found to be in good health.

"On the evening in question, the decedent was driving the defendant's truck trailer from the defendant's terminal at Forty Fort to Allentown via Route 309.

[ 206 Pa. Super. Page 453]

The vehicle was forty feet in length, 12 feet high, with a capacity of 20 tons and had dual wheels 4 feet high. At about 9:30 p.m., the decedent began to ascend a steep graded mountain road. At the time it was snowing and sleeting, reducing the road surface to a slippery state; cars were stalled along and on the highway and the Commonwealth's highway crews were plowing and cindering. Because the trailer was sliding and slipping, the decedent decided then and there to put chains on the vehicle while it was still on the steep grade; it was dark, raining, hailing, snowing, cold, freezing, windy and the footing was bad; the decedent stopped his vehicle, examined the circumstances, removed the chains, examined the chains by the light of the headlights from the vehicle, laid out the chains in back of the rear wheels, backed the rear wheels onto the chains and then hooked them on. The chains weighed approximately 30 pounds each and it required a half hour to attach them to the tires. After the decedent had attached the chains, he returned to the cab and resumed ascent of the mountain. After proceeding about one hundred yards, he stopped because of a stalled car on the highway. He then proceeded upward for about another 500 yards where he turned his truck off the road and stopped. Shortly thereafter he was found dead slumped over the steering wheel of the vehicle. The lights of the cab were still on and the air pressure buzzer was ringing. Dr. Joseph T. Buckey arrived shortly thereafter, found no trauma to the body, and pronounced him dead as a result of a coro nary occlusion".

The award of the Referee was based upon the following finding of fact: "10. We find as a fact that the decedent's death was a direct result of a coronary occlusion precipitated by unusual strain on the heart, said strain being brought about by strenuous exertion in applying the heavy chains to the wheels of the trailer

[ 206 Pa. Super. Page 454]

    under conditions of snow and a slippery highway, accompanied by an emotional strain and anxiety". The disallowance by the Board was based upon the following substituted finding of fact: "Tenth: Anthony Pudlosky's death on March 22, 1961 was not the result of an accident. The procedure used by decedent to put chains on his truck was not unusual to his ...


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