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CITY SCRANTON v. COMMONWEALTH PENNSYLVANIA (05/31/79)

decided: May 31, 1979.

CITY OF SCRANTON, DEPARTMENT OF FIRE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, COMMONWEALTH OF PENNSYLVANIA, AND OLGA O'DONNELL, WIDOW OF PAUL O'DONNELL, DECEASED, RESPONDENTS. OLGA O'DONNELL, WIDOW OF PAUL O'DONNELL, DECEASED, PETITIONER V. COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CITY OF SCRANTON, DEPARTMENT OF FIRE ET AL., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Olga O'Donnell, w/o Paul O'Donnell, deceased v. City of Scranton Fire Department and Commonwealth of Pennsylvania, No. A-73016.

COUNSEL

John R. Lenahan, Jr., with him Lenahan, Dempsey, Murphy & Piazza, for City of Scranton, Department of Fire.

H. R. Van Deusen, Jr., with him Van Deusen & Van Deusen, for Olga O'Donnell.

Sandra Christianson, Assistant Attorney General, for Commonwealth of Pennsylvania.

Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 43 Pa. Commw. Page 152]

Two cases were consolidated here for argument on appeal. In No. 948 C.D. 1978, the City of Scranton (City) appealed from an order of the Workmen's Compensation Appeal Board (Board) which affirmed a referee's award of benefits to Olga O'Donnell (claimant) pursuant to The Pennsylvania Workmen's

[ 43 Pa. Commw. Page 153]

Compensation Act,*fn1 (Workmen's Compensation Act). In No. 805 C.D. 1978, the claimant appealed from the same order alleging that the Board erred in calculating the amount of the award.

No. 948 C.D. 1978

The claimant's husband (decedent) was employed as a City fireman prior to his death in 1973, and she filed a claim petition under Section 108(o) of The Pennsylvania Occupational Disease Act,*fn2 (Occupational Disease Act) 77 P.S. ยง 1208(o), alleging that his death was the result of exposure to the hazards of an occupational disease contracted during his City employment. The referee held that she was entitled to benefits under the Workmen's Compensation Act, not under the Occupational Disease Act as claimed, and the Board affirmed this award.

On an earlier appeal to this Court, we held that proper jurisdiction was with the Court of Common Pleas of Lackawanna County and we transferred the appeal to that court. It concluded that the claimant had succeeded in proving her husband's death to have been caused by an occupational disease and was entitled to benefits under the Workmen's Compensation Act, but it remanded the case to the Board for a determination as to whether or not the decedent has been exposed to the hazard of this occupational disease after June 30, 1973.*fn3 On another appeal to this Court, we found that the referee and Board had both erred in awarding benefits under the ...


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