Herbert Somerson, Philadelphia, for appellant.
Joseph H. Foster, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Spaeth, J., concurs in the result.
[ 254 Pa. Super. Page 163]
This is an appeal from the order of the Court of Common Pleas of Philadelphia County which sustained appellee's preliminary objections and dismissed appellant's complaint.
Edward Gabel died on January 22, 1971, at the age of 56 of respiratory cancer. He had been employed by the appellee,
[ 254 Pa. Super. Page 164]
Rohm & Haas Company, from January 1956 until October 2, 1970.
The appellant, Anthony J. Gabel, Executor of the Estate of Edward Gabel deceased, filed a claim petition for Workmen's Compensation on June 2, 1975. An answer was filed thereto. When called before a referee for hearing the appellant had the hearing continued.
On December 3, 1975, the appellant filed his complaint in trespass alleging decedent died of respiratory cancer due to exposure to chemical fumes at work for appellee.
The appellee filed preliminary objections to the complaint alleging lack of jurisdiction in the Court of Common Pleas because the cause of action was under the Occupational Disease Act No. 284, June 21, 1939, P.L. 566, as amended 77 P.S. 1201 et seq. Unlike Greer v. United States Steel, 237 Pa. Super. 597, 352 A.2d 450 (1975), in the instant case depositions were produced which established the disease to be occupational and within the purview of § 108 of the Act, supra, because of its cause and the characteristics of its manifestation.
That this matter falls within the primary jurisdiction of the Bureau of Workmen's Compensation is apparent. As was stated in the case of Weston v. Reading Company, 445 Pa. 182, 282 A.2d 714 (1971):
"The principles of the doctrine of primary jurisdiction are well settled. The United States Supreme Court '. . . recognized early in the development of administrative agencies that coordination between traditional judicial machinery and these agencies was necessary if consistent and coherent policy were to emerge . . . The doctrine of primary jurisdiction has become one of the key judicial switches through which this current had passed.' Port of Boston Marine Terminal Ass'n. v. Rederiaktiebolaget Trans-Atlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 208 [27 L.Ed.2d 203] (1970) (footnote and citations omitted). ...