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PEREZ v. BLUMENTHAL BROTHERS CHOCOLATE COMPANY (01/09/68)

decided: January 9, 1968.

PEREZ
v.
BLUMENTHAL BROTHERS CHOCOLATE COMPANY, APPELLANT



Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1964, No. 1968, in case of Louis Perez v. Blumenthal Brothers Chocolate Company.

COUNSEL

Frederick W. Anton, III, with him Paul H. Ferguson, for appellant.

Joseph Matusow, with him Irving Marks, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien.

Author: O'brien

[ 428 Pa. Page 226]

Appellee commenced an action of trespass against appellant, his employer, alleging that appellant had violated its duty to protect the health and safety of appellee, its employee. Specifically, appellee alleged that he was exposed to heavy dust produced in a grinding operation, and that this, together with injurious fumes caused by the high temperatures associated with appellant's operation, caused him an aggravation of a latent tubercular condition and a pre-existing pulmonary emphysema and severe bronchitis.

The case was heard in a non-jury trial resulting in a verdict for appellee. The trial judge found that appellee's condition was caused or aggravated by a continued

[ 428 Pa. Page 227]

    exposure to a heavy concentration of dust and excessive heat in his employment with appellant. Appellant's exceptions to the findings and verdict of the trial judge were heard and dismissed. This appeal followed the entry of judgment on the verdict of the trial judge.

Appellant asserts in this appeal that appellee's action is barred by The Pennsylvania Occupational Disease Act,*fn1 and that the finding of the trial judge that appellee's emphysema was caused by any condition existing in appellant's plant was not supported by competent medical evidence. We disagree with appellant on both counts.

One is tempted to dismiss appellant's argument relative to The Pennsylvania Occupational Disease Act out of hand, inasmuch as appellee, prior to the filing of the instant action of trespass had filed a claim under the Act, which claim was resisted by appellant on the ground that emphysema is not an occupational disease. Appellant ought not to be permitted to have it both ways. Be that as it may, however, the Act itself makes clear that it is not a bar to the trespass action. The Act enumerates occupational diseases in § 108, 77 P.S. § 1208. The specifically enumerated diseases have no relevancy here, but subsection (n) added to the section in 1956 is relied upon by appellant in support of its contention that the Act provides appellee's exclusive remedy. That section states: "(n) All other occupational diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are peculiar to the industry or occupation, and (3) which are not common to the general population. . . ." We are in agreement with the court below that the General Assembly intended to bring within the purview of the Act

[ 428 Pa. Page 228]

    all diseases not specifically enumerated which meet the standards set forth in subsection (n). In view of the fact that appellee offered competent medical testimony that pulmonary emphysema is not "peculiar to the industry" of chocolate manufacturing and is "common to the general population", we conclude, as did the court below, that appellee's condition is not ...


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