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CLARENCE GROSSER v. L.E. SMITH GLASS COMPANY AND COMMONWEALTH PENNSYLVANIA (03/06/86)

decided: March 6, 1986.

CLARENCE GROSSER
v.
L.E. SMITH GLASS COMPANY AND COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION. L.E. SMITH GLASS COMPANY, APPELLANT. WILLIAM C. WELLS V. DURALOY BLAW-KNOX AND COMMONWEALTH OF PENNSYLVANIA, BUREAU OF WORKERS' COMPENSATION. DURALOY BLAW-KNOX, APPELLANT. STEVE A. KETO V. L.E. SMITH GLASS COMPANY AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY. L.E. SMITH GLASS COMPANY, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Westmoreland County in the cases of Clarence Grosser v. L.E. Smith Glass Co. and Commonwealth of Pennsylvania, No. 5 of 1983; William C. Wells v. Duraloy Blaw-Knox and Commonwealth of Pennsylvania, No. 7 of 1983, and Steve A. Keto v. L.E. Smith Glass Company and Pennsylvania Manufacturers' Association Insurance Company, No. 6930 of 1982.

COUNSEL

H. Reginald Belden, Jr., with him, Dennis N. Persin, Stewart, Belden, Herrington & Beldin, for appellants, L.E. Smith Glass Company, Pennsylvania Manufacturers' Association Insurance Company and Duraloy Blaw-Knox.

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost and Thomas D. Gould, for appellees/claimants.

Paul E. Baker, Assistant Counsel, with him, Barry M. Hartman, Chief Counsel, for appellee, Commonwealth of Pennsylvania, Bureau of Workers' Compensation.

President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Doyle, Colins and Palladino. Opinion by Judge Palladino.

Author: Palladino

[ 95 Pa. Commw. Page 452]

Duraloy Blaw-Knox and L.E. Smith Glass Company (Employers) appeal from decisions of the Court of Common Pleas of Westmoreland County (trial court) which reversed decisions by the Workmen's Compensation Appeal Board (Board) allocating one hundred percent liability for workmen's compensation to the Commonwealth, and reinstated referees' decisions allocating liability sixty percent to the Employers and forty percent to the Commonwealth. For the reasons set forth below, we affirm.

The three claimants in these consolidated appeals are Clarence Grosser, William Wells and Steve Keto. More than four years after their last exposure to silica hazard at work, each claimant*fn1 filed an occupational disease claim for silicosis pursuant to Section 301(i) of The Pennsylvania Occupational Disease Act (Act).*fn2 Section 301(i) allows compensation for total

[ 95 Pa. Commw. Page 453]

    disability from silicosis to every employee who resides in Pennsylvania and has been exposed at work to silica, coal or asbestos hazard in Pennsylvania for a period of at least two years, if the employee has not been compensated because his claim was barred by time limitations of the Act.

The referee awarded all three claimants compensation for total disability under this section. Their entitlement to the compensation is not contested. Because the last exposure of each claimant followed December 1, 1965, the effective date of the amendment to Section 301, the referee referred to Section 308(a) of the Act*fn3 to hold the Commonwealth and the Employer jointly liable for payment of compensation, forty percent and sixty percent respectively. The Employers appealed to the Board, which held that the Commonwealth should be solely liable for compensation, because to utilize the provision of Section 308(a) with Section 301(i) would lead to an unfair and absurd result, which the legislature could not have intended. The Commonwealth then appealed to the trial court, which reinstated the referee's 60%-40% split of liability in each case. These appeals followed.

The issues before us are: (1) whether Section 301(i) of the Act was intended to refer to Section 308(a) to determine liability for compensation; and (2) assuming Section 301(i) does incorporate Section 308(a), whether these provisions of the ...


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