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CHESTER BONIECKE v. MCGRAW-EDISON COMPANY (12/28/77)

decided: December 28, 1977.

CHESTER BONIECKE
v.
MCGRAW-EDISON COMPANY, A CORPORATION AND LECTROMELT CORPORATION, A CORPORATION, APPELLANTS



No. 871 April Term, 1976, Appeal from the Order Dated May 31, 1976 Dismissing Appellants' Motion for Summary Judgment Relating to Jurisdiction of the Court of Common Pleas of Allegheny County, Pennsylvania, Civil Division at No. GD 75-2092.

COUNSEL

Fred C. Trenor, II, Pittsburgh, for appellants.

Robert E. Tucker, Pittsburgh, submitted a brief for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Watkins, President Judge, joins.

Author: Cercone

[ 252 Pa. Super. Page 469]

This is an appeal from an interlocutory order of the Court of Common Pleas of Allegheny County, Civil Division, dismissing defendant-appellants' motion for summary judgment. Appellants claim a right to appeal to this Court, although from an interlocutory order, under the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, Art. V, § 501, 17 P.S. § 211.501 (Supp.1976), and the Act of March 5, 1925, P.L. 23, § 1, 12 P.S. § 672, since it raises a question concerning the jurisdiction of the lower court. We disagree with appellants' jurisdictional claim and will affirm.

The basis of the action below was a complaint in trespass filed by plaintiff-appellee, Chester Boniecke, alleging he had become totally disabled from pulmonary fibrosis, emphysema and bronchitis resulting from appellants' negligence in failing to provide him a safe place to work. Appellee became disabled on July 18, 1973 after 22 years of employment in appellants' plant. On February 28, 1974, he filed a claim petition under Section 108 of the Occupational Disease Act, added February 28, 1955, P.L. 1095, § 1, 77 P.S. § 1208(n) (Supp.1976). After hearings on July 23, 1974, October 23, 1974, and February 15, 1975, at which hearings appellants denied the allegations of disability caused by an "occupational disease," the referee found that Mr. Boniecke did not have an "occupational disease" within the meaning of the act, and dismissed the petition. The board of appeals affirmed the referee's decision. The board found Mr. Boniecke failed to prove he had an occupational disease under Section 108(n) of the Occupational Disease Act. After this determination, Mr. Boniecke brought the instant action at common law.

[ 252 Pa. Super. Page 470]

Appellants in their motion for summary judgment claim the basis of the action is covered by either or both the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, n. 1, § 101 et seq., as amended and the Occupational Disease Act, Act of June 21, 1939, P.L. 566, No. 284, § 101 et seq., as amended, and that these statutes provide the exclusive remedy for appellee through the Workmen's Compensation Board.*fn1 In dismissing the motion for summary judgment, the court below found Mr. Boniecke had been determined not to be covered by the Occupational Disease Act, supra, under which Mr. Boniecke had filed his claim, which was heard in proceedings before the board and was not prohibited from bringing an action at common law.

The exclusive remedy for an "occupational disease" is found within the Occupational Disease Act as provided in Section 303 of the Act. 77 P.S. § 1403 (1952). The Workmen's Compensation Board, both at the referee and appeals level, held that Mr. Boniecke was not disabled as a result of an "occupational disease" as defined in the Act. Section 108 of the Act enumerates certain diseases which are considered to be "occupational diseases." The enumeration of these diseases is based on a prior legislative determination that available medical evidence establishes the causal relationship between exposure to the particular hazards of an industry or occupation and contracting particular diseases. Unlike an action at common law where proof of negligence is necessary

[ 252 Pa. Super. Page 471]

    to fix liability and permit recovery, the Act requires only proof of sufficient exposure to the hazard and proof of disability from the named disease. Cuevas v. Platers & Coaters, Inc., 464 Pa. 35, 346 A.2d 6 (1975).

In order for a disease, not enumerated to be an "occupational disease," to fall within the provisions of the Act, the claimant must demonstrate that his claim meets all the criteria set ...


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