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

COMMONWEALTH COURT OF PENNSYLVANIA


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. ยง 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 transferred to that court.*fn4

The lower court decided that O'Donnell had succeeded in proving that her husband's death was caused by an occupational disease under the Workmen's Compensation Act, but remanded the case so that the Board could determine whether the decedent had exposure to the hazard of his occupational disease after June 30, 1973.*fn5

This case is controlled by our recent decisions holding that the referee and the Board may not award benefits under the Workmen's Compensation Act when a claim petition is filed under the Occupational Disease Act and never amended.*fn6 Since the case must be decided under the Occupational Disease Act, the issue of exposure after June 30, 1973, is irrelevant.

The Board erred in its adjudication by applying the scope of review applicable to Workmen's Compensation cases.*fn7 We will remand the case to the Board so that it may render a proper adjudication pursuant to the Occupational Disease Act.

We therefore

Order

And Now, this 19th day of December, 1975, the order of the Court of Common Pleas of Lackawanna County, dated March 11, 1975, is hereby reversed, and it is

[ 22 Pa. Commw. Page 415]

    ordered that this case be remanded to the Workmen's Compensation Appeal Board, so that it may render an adjudication under the Pennsylvania Occupational Disease Act; such additional testimony may be received as the Board, in its discretion, deems necessary.

Disposition

Reversed and remanded to the Workmen's Compensation Appeal Board.


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