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OLGA O'DONNELL v. CITY SCRANTON (12/19/75)

decided: December 19, 1975.

OLGA O'DONNELL, WIDOW OF PAUL O'DONNELL, DECEASED
v.
CITY OF SCRANTON, DEPARTMENT OF FIRE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of Olga O'Donnell, Widow of Paul O'Donnell, Deceased, v. City of Scranton, Department of Fire, No. 2016 September Term, 1974.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan, and Anthony J. Piazza, for appellant.

Sandra S. Christianson, Assistant Attorney General, for Commonwealth.

Harry R. Van Deusen, Jr., with him Van Deusen & Van Deusen, for appellee, Olga O'Donnell.

James N. Diefenderfer, for appellee, Workmen's Compensation Appeal Board.

Judges Crumlish, Jr., Kramer and Wilkinson, Jr., sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 22 Pa. Commw. Page 412]

This is an appeal by the City of Scranton from an order of the Court of Common Pleas of Lackawanna County which affirmed an award of compensation to

[ 22 Pa. Commw. Page 413]

Olga O'Donnell, widow of Captain Paul O'Donnell (decedent) of the Scranton Fire Department, but remanded the case to the Workmen's Compensation Appeal Board for a determination on the issue of the decedent's exposure to the hazard of his occupational disease after June 30, 1973. We reverse the lower court and remand to the Board for a determination of O'Donnell's eligibility for compensation under the Pennsylvania Occupational Disease Act.*fn1

On October 25, 1973, O'Donnell filed a claim petition seeking compensation for the death of her husband pursuant to Section 108(o) of the Occupational Disease Act, 12 P.S. § 1208(o).*fn2 During one of the hearings before the referee, counsel for O'Donnell specifically noted that he was proceeding under the Occupational Disease Act. At no point in the proceedings was O'Donnell's claim petition ever amended. Nonetheless, the referee awarded benefits under the Pennsylvania Workmen's Compensation Act,*fn3 and the Board affirmed. The City appealed to this Court, but President Judge Bowman, in an order dated August 30, 1974, sua sponte, raised the issue of jurisdiction, concluded that proper jurisdiction would be with the Court

[ 22 Pa. Commw. Page 414]

    of Common Pleas of Lackawanna County, and, therefore, ordered the appeal ...


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