Appeal from the Order of the Court of Common Pleas of Westmoreland County in the case of Commonwealth of Pennsylvania, Department of Labor and Industry v. Allegheny Ludlum Industries, Inc. and Alden E. Scott, Sr. (Deceased), Lucille Scott (widow) and Workmen's Compensation Appeal Board, No. 3245 of 1984.
Paul E. Baker, with him, Henry A. Riley, Assistant Counsel, for appellant.
Ronald Ganassi, Will, Keisling, Ganassi & McCloskey, for respondent, Allegheny Ludlum Industries, Inc.
President Judge Crumlish, Jr. and Judges Rogers and Colins, sitting as a panel of three. Opinion by Judge Rogers.
[ 96 Pa. Commw. Page 350]
The Commonwealth of Pennsylvania, Department of Labor and Industry, appeals from an order of the Court of Common Pleas of Westmoreland County affirming a decision of the Workmen's Compensation Appeal Board (board) directing the Commonwealth to pay the entire amount of an award made to the claimant, Lucille Scott, the widow of Alden E. Scott, Sr., pursuant to The Pennsylvania Occupational Disease Act, (Act), Act of June
[ 96 Pa. Commw. Page 35121]
, 1939, P.L. 566, as amended, 77 P.S. §§ 1201-1601.1. The parties have stipulated that they are no longer "continuing to litigate the entitlement of the decedent to benefits under the Occupational Disease Act of 1939 but Defendants are continuing to litigate their respective percentages of liability, if any, under Section 301(g) of the Occupational Disease Act of 1939."
The Commonwealth says, based on Section 308(a) of the Act, 77 P.S. § 1408(a), that the decedent's employer, Allegheny Ludlum Industries, Inc., should bear 60% of the cost of the compensation because the decedent did not have more than one employer. We agree with the Commonwealth.
The decedent began working for Allegheny Steel Company in 1936. On August 16, 1938 Allegheny Steel Company effected a corporate merger with Ludlum Steel Company, forming Allegheny Ludlum Steel Corporation, later renamed Allegheny Ludlum Industries, Inc. As we will later demonstrate, the corporation for whom the decedent began work in 1936, Allegheny Steel Company, was the survivor corporation of its merger with Ludlum Steel Company. The decedent remained employed by his first employer through the merger and change of names of the survivor.
On February 23, 1979, the decedent filed a claim petition (properly naming Allegheny Ludlum Industries, Inc. as his employer) under the Pennsylvania Occupational Disease Act, alleging that he was totally disabled from silicosis and pneumoconiosis as a result of his employment in a hazardous occupation having a silica hazard. The decedent died on November 1, 1980, and is survived by the claimant, his widow.
After several proceedings, which we need not discuss, the referee issued a decision in which he found that the decedent was first employed by Allegheny Steel Company ...