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HARMAR COAL COMPANY AND OLD REPUBLIC COMPANIES v. COMMONWEALTH PENNSYLVANIA (12/30/77)

decided: December 30, 1977.

HARMAR COAL COMPANY AND OLD REPUBLIC COMPANIES, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CLARA E. RUSKUS, WIDOW OF JOSEPH, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Clara E. Ruskus, Widow of Joseph, v. Harmar Coal Company and Commonwealth of Pennsylvania, No. A-71720.

COUNSEL

George H. Thompson, with him Hirsch, Weise & Tillman, for respondents.

Benjamin L. Costello, with him Kenneth J. Yablonski, and James N. Diefenderfer, for respondents.

Mary Ellen Krober, Assistant Attorney General, with her, David A. Ody, Assistant Attorney General, for Commonwealth.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 33 Pa. Commw. Page 99]

Harmar Coal Company and Old Republic Companies have appealed from a decision of the Workmen's

[ 33 Pa. Commw. Page 100]

Compensation Appeal Board which affirmed a referee's order awarding workmen's compensation benefits to the claimant, Clara E. Ruskus. The Board additionally directed the Commonwealth of Pennsylvania, Harmar Coal Company and Old Republic Companies proportionately to pay to Clara E. Ruskus $100.00, that being the charge made by her doctor witness for testifying.*fn1

The claimant is the widow of Joseph Anthony Ruskus. Mr. Ruskus retired on October 13, 1973 after having worked for 39 years in the coal mining industry. He died on January 5, 1974 and his widow filed a fatal claim petition on February 11, 1974 alleging that her husband had died from coal worker's pneumoconiosis. After a hearing on June 25, 1974 and the admission into evidence of a deposition of the claimant's doctor on October 25, 1974, the referee entered a decision and order awarding benefits to the claimant. The defendants appealed, contesting the rate of compensation awarded and the sufficiency of the evidence for any award. At oral argument before the Board, counsel for the claimant requested that the case be remanded so that the claimant might amend her claim petition from one under the Occupational Disease Act to one under Section 108(q) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 27.1(q). The Board remanded the case solely for this purpose and the claimant amended her petition. No additional evidence was offered and the parties stipulated that the record should be closed. The referee again awarded benefits to the claimant and this time both parties appealed to the Board. The

[ 33 Pa. Commw. Page 101]

    defendants' appeal again contested the rate of compensation and the sufficiency of the evidence. The claimant complained of the referee's failure to award the reasonable costs of litigation as provided by Section 440 of the Act, 77 P.S. § 996, added by the Act of February 8, 1972, P.L. 25, § 3. The Board affirmed the referee's order awarding benefits to the claimant; however, it additionally ordered the defendants to pay the claimant $100.00 to pay the doctor's charge for testifying, pursuant to Section 440 of the Act, 77 P.S. § 996.

In the appeal to this Court, Harmar Coal Company and Old Republic Companies say first that Section 440 of the Act, 77 P.S. § 996, violates the Equal Protection clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution which provides that the Commonwealth shall not ...


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