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EVANS v. ALLENTOWN PORTLAND CEMENT CO. (04/23/69)

decided: April 23, 1969.

EVANS, APPELLANT,
v.
ALLENTOWN PORTLAND CEMENT CO.



Appeal from order of Court of Common Pleas of Berks County, Dec. T., 1967, No. 50, in case of Joseph T. Evans, administrator of estate of James M. Evans, deceased, v. Allentown Portland Cement Co. et al.

COUNSEL

George R. Eves, for appellant.

Richard A. Bausher, with him Stevens & Lee, for appellee.

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

Author: O'brien

[ 433 Pa. Page 595]

This is an appeal from the order of the Court of Common Pleas of Berks County, sustaining appellee's preliminary objections in the nature of a demurrer.

[ 433 Pa. Page 596]

The case arose out of an industrial accident, in which appellant's decedent, James M. Evans, was killed. The complaint alleged that appellee, Allentown Portland Cement Co., had operated an electrically powered conveyor system without the safeguards required by law, and that the decedent met his death as a result of the unguarded system. It further alleged that because of the unlawful acts of appellee, neither decedent nor appellant was bound by the provisions of the Workmen's Compensation Act. Appellees filed preliminary objections asserting that appellant's exclusive remedy was under the Workmen's Compensation Act and that no cause of action existed in trespass. The court below sustained the preliminary objections. We affirm.

The Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P.S. § 1 et seq., provides that compensation shall be paid "when employer and employe shall by agreement, either express or implied . . . accept the provisions of article three of this Act." Section 301(a) of Article III, 77 P.S. § 431. It is conclusively presumed under the Act that the parties have accepted the provisions of the Act and have agreed to be bound thereby unless written notice of an intention that the Act not apply be given by either party to the other. Section 302(a) of Article III, 77 P.S. § 461. Section 303 of Article III of the Act, 77 P.S. § 481, specifically states: "Such agreement shall constitute an acceptance of all the provisions of article three of this act, and shall operate as a surrender by the parties thereto of their rights to any form or amount of compensation or damages for any injury or death occurring in the course of employment, or to any method of determination thereof, other than as provided, in article three of this act. Such agreement shall bind the employer and his personal representatives, and the employe, his or her wife or husband,

[ 433 Pa. Page 597]

    widow or widower, next of kin, and other dependents." (Emphasis supplied).

Appellant contended below that § 303 is inapplicable in the instant case because of the allegations of a wilful and unlawful violation of the safety provisions of both the Act of May 18, 1937, P. L. 654, § 2, as amended, 43 P.S. § 25-2(b), and the Rules and Regulations of the Department of Labor and Industry. The court below properly gave short shrift to appellant's contention, pointing out that the cases upon which he relied were neither good law, at present, nor if they were good law, were they applicable to the instant case because they both involved the special situation of the employment of minors in direct contravention of a statute prohibiting such employment.

Appellant has shown us no reason to reverse the court below. Although the word "minor", nowhere to be found in his complaint, now conspicuously dots appellant's brief, we fail to see the relevance. Even if Lincoln v. National Tube Co., 268 Pa. 504, 112 Atl. 73 (1920), and King v. Darlington B. & M. Co., 284 Pa. 277, 131 Atl. 241 (1925), were good law, appellant has failed to come within their ambit. Appellant has pointed to no statutory provision or Labor ...


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