Appeal from the Order of the Court of Common Pleas of Crawford County in case of Kenneth Baughman v. Meadville Malleable Iron and Commonwealth of Pennsylvania, No. 35 November Term, 1976.
Mary Ellen Krober, Assistant Attorney General, for appellant.
Sam R. Keller, for appellee, Kenneth Baughman.
Howard N. Plate, with him Plate, Doyle, Hutzelman and Berlin, for appellee, Meadville Malleable Iron.
Judges Mencer, Rogers and DiSalle, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, DiSalle and Craig. Judges Blatt and MacPhail did not participate. Opinion by Judge Rogers.
The Commonwealth of Pennsylvania appeals from an order of the Court of Common Pleas of Crawford County affirming a decision of the Workmen's Compensation Appeal Board directing the Commonwealth to pay the entire amount of an award made to one Kenneth Baughman, pursuant to The Pennsylvania Occupational Disease Act (Act),*fn1 77 P.S. § 1201 et seq.
The Commonwealth does not challenge Baughman's entitlement to compensation; it says that his employer, Meadville Malleable Iron Company, should bear 60% of the cost. We disagree and affirm.
Baughman was employed by Meadville Malleable Iron Company (Meadville Iron) as a chipper and grinder from 1927 until October 2, 1967 when Meadville Iron merged with Dayton Malleable Iron Company (Dayton Iron). Baughman continued working for Dayton Iron, the surviving corporation of the merger, as a chipper and grinder until November 11, 1972 at which time he became totally disabled from silicosis. The referee ordered that the compensation payable be apportioned 60% against Baughman's employer, Dayton Iron, and 40% against the Commonwealth pursuant to Section 308(a) of the Act, 77 P.S. § 1408(a). On appeal, the Workmen's Compensation Appeal Board (Board) affirmed the decision holding that Baughman had suffered a compensable disability but modified the referee's order so as to require that the Commonwealth pay 100% of the award pursuant to Section 301(g) of the Act, 77 P.S. § 1401(g). The court below by an able opinion by Judge F. Joseph Thomas affirmed the Board and this appeal by the Commonwealth followed.
Section 308(a) of the Act provides that:
(a) When compensation is awarded because of disability or death caused by silicosis, anthraco-silicosis, coal worker's pneumoconiosis, asbestosis, or any other occupational disease which developed to the point of disablement only after an exposure of five or more years, the compensation for disability or death due to such disease shall, except as otherwise provided in Subsection (g) of Section ...