Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Catherine Flynn, widow of John Flynn v. Asten-Hill Manufacturing Company and Commonwealth of Pennsylvania, No. 4738 June Term, 1975.
Mary Ellen Krober, Assistant Attorney General, with her David A. Ody, Assistant Attorney General, for appellant.
Vincent B. Corsetti, for appellee.
Judges Rogers and Blatt, sitting as a panel of two. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt and DiSalle. Opinion by Judge Wilkinson, Jr. Concurring Opinion by Judge DiSalle. Judge Rogers joins.
[ 34 Pa. Commw. Page 220]
This appeal was initially argued before a panel of Judges, and was then directed for reargument before the Court en banc. It brings before this Court a case of first impression regarding The Pennsylvania Occupational Disease Act (Act), Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq. The issue presented is whether a widow is entitled to recover disability compensation, and/or compensation for medical and hospital expenses, arising out of a disability which her deceased husband may have suffered in his lifetime, when the deceased husband did not apply for benefits prior to his death. To put it another way, we must decide whether a potential claimant's right to disability benefits survives his death. We hold that a claimant's cause of action does not survive his death, and that, therefore, a widow may not recover when the claimant filed no claim prior to his death.
On June 25, 1968, the appellee, a widow, filed two claims with the Bureau of Occupational and Disease Compensation. One petition was a fatal claim petition which alleged that the appellee's husband had died from asbestosis, and which sought compensation and funeral benefits under Section 307 of the Act, 77 P.S. § 1407. After a series of hearings, the referee awarded benefits to the appellee on her fatal claim petition. No appeal was taken from this award, and its validity is not challenged by any of the parties in the present proceeding.
[ 34 Pa. Commw. Page 221]
The second petition filed by the appellee sought total disability on behalf of her husband from August 30, 1967 to October 15, 1967, the date of his death. The referee found that the appellee's husband had in fact become totally disabled on August 30, 1967, and that this disability continued up to the date of his death. The referee then ordered the Commonwealth and the employer to pay disability compensation to the appellee, as well as reimburse her for medical and hospital expenses.
The Commonwealth appealed to the Workmen's Compensation Appeal Board (Board) arguing that a widow could not collect compensation for the lifetime disability of her husband when he had filed no claim petition prior to his death. The Board dismissed this challenge, but did find that the widow had not produced sufficient medical evidence on which to base an award of lifetime disability benefits. The Board ordered the case remanded to the referee.
The Commonwealth appealed to the Court of Common Pleas of Philadelphia County, which appeal was vacated when the Board granted the appellee's Petition for Rehearing. In its second order the Board reaffirmed its original decision, and held once again that the widow could collect benefits. The Commonwealth reinstated its appeal to the Court of Common Pleas of Philadelphia County. That Court dismissed the Commonwealth's appeal as being from an interlocutory order. The Commonwealth took the instant appeal to this Court.
First, we will not quash the instant appeal as interlocutory. While normally an appeal from a decision of the Board remanding the case to a referee would be unappealable, where the Board's order is based on a clear error of law which would necessitate long and fruitless proceedings, ...