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UTTER ET AL. v. ASTEN-HILL MFG. CO. (09/19/73)

decided: September 19, 1973.

UTTER ET AL., APPELLANTS,
v.
ASTEN-HILL MFG. CO.



Appeal from judgment of Commonwealth Court, Nos. 867 C.D. 1971, 872 C.D. 1971, 873 C.D.1971 and 912 C.D. 1971, reversing order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1969, Nos. 3260, 3550 and 3551, affirming orders of the Workmen's Compensation Board, in cases of Robert T. Utter v. Asten-Hill Mfg. Co., and Commonwealth of Pennsylvania State Workmen's Insurance Fund; Margaret R. Utter, widow of Robert T. Utter, deceased v. Asten-Hill Mfg. Co., and Commonwealth of Pennsylvania State Workmen's Insurance Fund; Alice Bambrick, widow of Cecil Bambrick, deceased v. Asten-Hill Mfg. Co., and Pennsylvania Manufacturers' Association Insurance Co.

COUNSEL

Joseph V. Furlong, Jr., with him Tabas, Smith & Furlong, for appellants.

John F. McElvenny and Joyce Ullman, for appellees.

Stephen E. Levin, Special Assistant Attorney General, for State Workmen's Insurance Fund, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Mr. Justice Nix took no part in the consideration or decision of this case. Concurring and Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this concurring and dissenting opinion.

Author: Jones

[ 453 Pa. Page 403]

This appeal involves three separate cases which were consolidated in the court below. Each case involves the same basic questions of fact and law.

The decedents, Robert Utter and Cecil Bambrick, were both employees of the Asten-Hill Manufacturing Company ["Asten-Hill"]. The Utter cases involve a claim for disability by the decedent during his lifetime and a claim for dependency benefits by his widow. Both claims were brought pursuant to The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, §§ 101-503, as amended, 77 P.S. §§ 1201-1603. In the Utter cases, Asten-Hill is represented by the State Workmen's Insurance Fund. The Bambrick case involves a claim under the Act for dependency benefits by Cecil Bambrick's widow. In this connection, Asten-Hill is represented by the Pennsylvania Manufacturers' Association Insurance Company.

These cases originated as awards of compensation by the referees below. Each award was affirmed by the Workmen's Compensation Board and the Board's decisions were upheld by the Court of Common Pleas of Philadelphia. The Commonwealth Court reversed (5 Pa. Commonwealth Ct. 664, 291 A.2d 354 (1972); opinion of the court by Wilkinson, J.; concurring opinion by Blatt, J.; dissenting opinion by Kramer, J., joined by Crumlish, Jr., J.). We granted a petition for the allowance of appeal.

The decedent, Robert Utter, was employed by Asten-Hill from October 14, 1946, to August 10, 1966, as a

[ 453 Pa. Page 404]

    weaver engaged in the manufacture of dryer felts made from asbestos. On September 26, 1966, Mr. Utter filed a claim for compensation alleging that he was suffering from asbestosis*fn1 and had become totally disabled. He died on February 25, 1967, at the age of forty-four, before the initial hearing on his disability petition. We agree preliminarily with the decision of the Commonwealth Court that there is no evidence on the record on which to base a finding that Robert Utter was totally disabled prior to his death. 5 Pa. Commonwealth Ct. at 667, 291 A.2d at 355. With respect to the claim of Robert Utter, therefore, the judgment of the Commonwealth Court is affirmed and the decedent's claim petition for disability is dismissed. The dependency benefits claim of Margaret Utter presents a different question and is considered in this opinion with the claim of Alice Bambrick, the widow of Cecil Bambrick.

Cecil Bambrick was employed by Asten-Hill from September 5, 1950 to October 30, 1962. This decedent, like Robert Utter, was employed as a weaver. From the date of his departure from Asten-Hill in 1962 until the date of his death on September 11, 1966, Mr. Bambrick was engaged in employment which did not present the hazard of asbestos exposure. The ...


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