Opinion by
Wright, J.,
This appeal involves the construction of Section 315 of The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 P.S. 1415. It will be necessary to set forth the factual and procedural history in some detail.
Matthew Moore was employed as a sandblaster by the Dodge Steel Company, Philadelphia, Pennsylvania. On February 24, 1960, Moore filed claim petition No. 158,946 alleging that he became totally disabled on June 5, 1959, as the result of silicosis. Answers were filed by the employer and by the Commonwealth. On January 25, 1961, before any hearing had taken place, [244]*244Moore died. On September 10, 1962, more than sixteen months after the date of her husband’s death, fatal claim petition No. 171,401 was filed by the widow, Lessie Moore. After taking testimony at hearings on June 26, 1963, and January 80, 1964, the Referee made two awards under date of March 19, 1964. On petition No. 158,946 the employer and the Commonwealth were ordered, on a 60-40 percentage basis, to pay compensation to Matthew Moore for total disability from June 19, 1959, to January 25, 1961. On petition No. 171,401 the employer and the Commonwealth were ordered, on the same percentage basis, to pay compensation to Lessie Moore for total dependency beginning January 25, 1961, for a period of 350 weeks. Both the employer and the Commonwealth appealed to the Board from the award on petition No. 171,401. No appeals were taken from the award on petition No. 158,-946. The Board affirmed the Referee’s decision. The employer appealed to the Court of Common Pleas of Philadelphia County at No. 2531 in C. C. P. No. 6, and the Commonwealth appealed at No. 2332 in C. C. P. No. 2. By stipulation of counsel, approved by President Judge Gold and by Judge Doty, the two appeals were consolidated and heard in C. C. P. No. 2. On January 25, 1965, Judge Gleeson reversed the Board’s decision, and judgment was thereafter entered for the defendants. Lessie Moore has appealed to this court.
The award to the widow on petition No. 171,401 was based by the Referee on the following finding, affirmed by the Board: “9. The claim petition filed by the decedent during his lifetime was a valid claim, and the fatal claim petition filed by the claimant is considered as a continuation of the claim of her deceased husband”.1 The position of the employer and the Com[245]*245monwealth is that the fatal claim petition is barred by the provisions of Section 315 of The Pennsylvania Occupational Disease Act which presently reads in pertinent part as follows: “In cases of death all claims for compensation shall be forever barred, unless, within sixteen months after the death, the parties shall have agreed upon the compensation payable under this article, or unless, within sixteen months after the death, one of the parties shall have filed a petition as provided in article four hereof. Where, however, payments of compensation have been made in any ease, said limitations shall not take effect until the expiration of sixteen months from the time of the making of the most recent payment made prior to the date of filing such petition”.
The question before us is stated in appellant’s brief as follows: “Where an original claim petition for disability under The Pennsylvania Occupational Disease Act is pending at the time of claimant’s death, is the surviving dependent widow compelled to institute an independent claim action, or may she amend the original claim petition to include her claim for the balance of compensation due”.
Appellant relies primarily on Toffalori v. Donatelli Granite Co., 157 Pa. Superior Ct. 311, 43 A. 2d 584, wherein we were concerned with the construction of Section 301(c) of The Pennsylvania Occupational Disease Act, 77 P.S. 1401(c), which then read in pertinent [246]*246part as follows: “Wherever compensable disability or death is mentioned as a cause for compensation under this act, it shall mean only compensable disability or death resulting from occupational disease and occurring within three years2 after the date of his last employment in such occupation or industry”. In the Toffalori case the husband had filed a claim petition during his lifetime, and had been awarded compensation for total disability. The date of his death was more than three years after the date of his last employment. However, the widow’s petition was filed less than two weeks after her husband’s death, and well within the limitation period in Section 315. This court held that the widow’s claim was not barred by Section 301(c) of the statute. Appellant also cites Wonderlick v. The Philadelphia & Reading Coal and Iron Co., 170 Pa. Superior Ct. 65, 84 A. 2d 233; Gawlick v. Glen Alden Coal Co., 178 Pa. Superior Ct. 149, 113 A. 2d 346; and Shrum v. Atlantic Crushed Coke Co., 186 Pa. Superior Ct. 377, 142 A. 2d 792, in all three of which cases it was held that the widow’s claim was barred under the provisions of Section 301(c).
The distinction between the Toffalori case and the instant case is that Section 301(c) deals with the right to compensation, while Section 315 limits the time within which the right to compensation must be asserted. The statutory period provided in Section 315 may not be extended as a matter of indulgence or because of hardship: Jones v. Philadelphia & Reading Coal & Iron Co., 154 Pa. Superior Ct. 465, 36 A. 2d 252. The general statements cited by appellant from our opinions in Confer v. Imbt, 191 Pa. Superior Ct. 74, 155 A. 2d 382; Guzik v. Laurel Ridge Construction Co., 196 Pa. Superior Ct. 586, 176 A. 2d 183; and Fehr v. Y. M. C. A., 201 Pa. Superior Ct. 107, 192 A. 2d 143, have [247]*247no application in the present situation. It is onr view that the court below properly rejected appellant’s contention in the instant case.
The right of a widow to compensation under The Pennsylvania Occupational Disease Act is a separate cause of action, independent of and not derivative from the right of the deceased employe: Holahan v. Bergen Coal Co., 164 Pa. Superior Ct. 177, 63 A. 2d 504. The rule is the same under The Pennsylvania Workmen’s Compensation Act. An award for disability during the employe’s lifetime is not conclusive in determining the widow’s claim, and the principle of res judicata does not apply: Jankaitis v. Harleigh Brookwood Coal Co., 134 Pa. Superior Ct. 125, 4 A. 2d 161. The widow’s claim is not defeated by her husband’s execution of a final receipt, Rossi v. Hillman Coal and Coke Co., 145 Pa. Superior Ct. 108, 20 A. 2d 879, or by the husband’s failure to file a claim petition during his lifetime: Polk v. Western Bedding Co., 145 Pa. Superior Ct. 142, 20 A. 2d 845. The following language of our colleague, Judge Flood, in Parks v. Winkler, 199 Pa. Superior Ct. 224, 184 A. 2d 124, is here pertinent (italics supplied) : “It was not necessary for the widow to set aside the final receipt given by the decedent as a prerequisite to the establishment of her claim for his death. Hers is an independent, not a derivative, claim and is not conditioned upon a right in the employe at the time of his death. . . . Neither a failure of the decedent to petition for or receive compensation for the injury during the statutory period following the accident, nor a failure by him to move to set aside a final receipt, bars his widow’s right, if she files her claim within the statutory period after his death”.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Wright, J.,
This appeal involves the construction of Section 315 of The Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 P.S. 1415. It will be necessary to set forth the factual and procedural history in some detail.
Matthew Moore was employed as a sandblaster by the Dodge Steel Company, Philadelphia, Pennsylvania. On February 24, 1960, Moore filed claim petition No. 158,946 alleging that he became totally disabled on June 5, 1959, as the result of silicosis. Answers were filed by the employer and by the Commonwealth. On January 25, 1961, before any hearing had taken place, [244]*244Moore died. On September 10, 1962, more than sixteen months after the date of her husband’s death, fatal claim petition No. 171,401 was filed by the widow, Lessie Moore. After taking testimony at hearings on June 26, 1963, and January 80, 1964, the Referee made two awards under date of March 19, 1964. On petition No. 158,946 the employer and the Commonwealth were ordered, on a 60-40 percentage basis, to pay compensation to Matthew Moore for total disability from June 19, 1959, to January 25, 1961. On petition No. 171,401 the employer and the Commonwealth were ordered, on the same percentage basis, to pay compensation to Lessie Moore for total dependency beginning January 25, 1961, for a period of 350 weeks. Both the employer and the Commonwealth appealed to the Board from the award on petition No. 171,401. No appeals were taken from the award on petition No. 158,-946. The Board affirmed the Referee’s decision. The employer appealed to the Court of Common Pleas of Philadelphia County at No. 2531 in C. C. P. No. 6, and the Commonwealth appealed at No. 2332 in C. C. P. No. 2. By stipulation of counsel, approved by President Judge Gold and by Judge Doty, the two appeals were consolidated and heard in C. C. P. No. 2. On January 25, 1965, Judge Gleeson reversed the Board’s decision, and judgment was thereafter entered for the defendants. Lessie Moore has appealed to this court.
The award to the widow on petition No. 171,401 was based by the Referee on the following finding, affirmed by the Board: “9. The claim petition filed by the decedent during his lifetime was a valid claim, and the fatal claim petition filed by the claimant is considered as a continuation of the claim of her deceased husband”.1 The position of the employer and the Com[245]*245monwealth is that the fatal claim petition is barred by the provisions of Section 315 of The Pennsylvania Occupational Disease Act which presently reads in pertinent part as follows: “In cases of death all claims for compensation shall be forever barred, unless, within sixteen months after the death, the parties shall have agreed upon the compensation payable under this article, or unless, within sixteen months after the death, one of the parties shall have filed a petition as provided in article four hereof. Where, however, payments of compensation have been made in any ease, said limitations shall not take effect until the expiration of sixteen months from the time of the making of the most recent payment made prior to the date of filing such petition”.
The question before us is stated in appellant’s brief as follows: “Where an original claim petition for disability under The Pennsylvania Occupational Disease Act is pending at the time of claimant’s death, is the surviving dependent widow compelled to institute an independent claim action, or may she amend the original claim petition to include her claim for the balance of compensation due”.
Appellant relies primarily on Toffalori v. Donatelli Granite Co., 157 Pa. Superior Ct. 311, 43 A. 2d 584, wherein we were concerned with the construction of Section 301(c) of The Pennsylvania Occupational Disease Act, 77 P.S. 1401(c), which then read in pertinent [246]*246part as follows: “Wherever compensable disability or death is mentioned as a cause for compensation under this act, it shall mean only compensable disability or death resulting from occupational disease and occurring within three years2 after the date of his last employment in such occupation or industry”. In the Toffalori case the husband had filed a claim petition during his lifetime, and had been awarded compensation for total disability. The date of his death was more than three years after the date of his last employment. However, the widow’s petition was filed less than two weeks after her husband’s death, and well within the limitation period in Section 315. This court held that the widow’s claim was not barred by Section 301(c) of the statute. Appellant also cites Wonderlick v. The Philadelphia & Reading Coal and Iron Co., 170 Pa. Superior Ct. 65, 84 A. 2d 233; Gawlick v. Glen Alden Coal Co., 178 Pa. Superior Ct. 149, 113 A. 2d 346; and Shrum v. Atlantic Crushed Coke Co., 186 Pa. Superior Ct. 377, 142 A. 2d 792, in all three of which cases it was held that the widow’s claim was barred under the provisions of Section 301(c).
The distinction between the Toffalori case and the instant case is that Section 301(c) deals with the right to compensation, while Section 315 limits the time within which the right to compensation must be asserted. The statutory period provided in Section 315 may not be extended as a matter of indulgence or because of hardship: Jones v. Philadelphia & Reading Coal & Iron Co., 154 Pa. Superior Ct. 465, 36 A. 2d 252. The general statements cited by appellant from our opinions in Confer v. Imbt, 191 Pa. Superior Ct. 74, 155 A. 2d 382; Guzik v. Laurel Ridge Construction Co., 196 Pa. Superior Ct. 586, 176 A. 2d 183; and Fehr v. Y. M. C. A., 201 Pa. Superior Ct. 107, 192 A. 2d 143, have [247]*247no application in the present situation. It is onr view that the court below properly rejected appellant’s contention in the instant case.
The right of a widow to compensation under The Pennsylvania Occupational Disease Act is a separate cause of action, independent of and not derivative from the right of the deceased employe: Holahan v. Bergen Coal Co., 164 Pa. Superior Ct. 177, 63 A. 2d 504. The rule is the same under The Pennsylvania Workmen’s Compensation Act. An award for disability during the employe’s lifetime is not conclusive in determining the widow’s claim, and the principle of res judicata does not apply: Jankaitis v. Harleigh Brookwood Coal Co., 134 Pa. Superior Ct. 125, 4 A. 2d 161. The widow’s claim is not defeated by her husband’s execution of a final receipt, Rossi v. Hillman Coal and Coke Co., 145 Pa. Superior Ct. 108, 20 A. 2d 879, or by the husband’s failure to file a claim petition during his lifetime: Polk v. Western Bedding Co., 145 Pa. Superior Ct. 142, 20 A. 2d 845. The following language of our colleague, Judge Flood, in Parks v. Winkler, 199 Pa. Superior Ct. 224, 184 A. 2d 124, is here pertinent (italics supplied) : “It was not necessary for the widow to set aside the final receipt given by the decedent as a prerequisite to the establishment of her claim for his death. Hers is an independent, not a derivative, claim and is not conditioned upon a right in the employe at the time of his death. . . . Neither a failure of the decedent to petition for or receive compensation for the injury during the statutory period following the accident, nor a failure by him to move to set aside a final receipt, bars his widow’s right, if she files her claim within the statutory period after his death”.
The only case cited by appellant which deals directly with Section 315 of The Pennsylvania Occupational Disease Act is Ciabattoni v. Birdsboro Steel Foundry & Machine Co., 386 Pa. 179, 125 A. 2d 365, [248]*248which is in no way dispositive of the question presented by the instant appeal. In the Ciabattoni case, our Supreme Court held that the limitation period within which a claim for disability may be filed does not commence to run until compensable disability begins to the knowledge of the claimant. In the case at bar the widow’s claim, as has been previously demonstrated, was independent of and not derivative from the right of her husband. It was based on her husband’s death, a definite event of which she eoncededly had immediate knowledge, and the sixteen-month limitation period commenced to run on the date of death.
We perceive no merit in appellant’s argument that, since her husband had filed a timely petition during his lifetime, and since this claim was pending at the time of his death, it was proper for her to amend his claim under the provisions of Rules Nos. 9 and 24 of the Workmen’s Compensation Board. Rule 9 permits the amendment of a petition where the claimant has erroneously relied on an improper section of the statute. Rule 24 permits the Referee to determine the dependents entitled to receive the compensation due if claimant dies prior to the adjudication of his claim. Neither rule is authority for substituting one petition where two are required. Neither rule can breathe life into a dead claim.
One further matter should perhaps be noted. While it is not argued by appellant before this court, the Board took the position that payment on May 16, 1964, of compensation due under the award on the husband’s petition, unappealed from as heretofore indicated, acted to toll the statute on the widow’s fatal claim petition. This position was clearly erroneous. In Segal v. Segal, 201 Pa. Superior Ct. 367, 191 A. 2d 858, a similar contention was rejected. It was therein held, not only that the widow’s claim was independent and not derivative, but also that the words “payments of compensa[249]*249tion” as used in the last sentence of Section 315 relate to payments on the claim being considered. The payment of May 16, 1964, was made on the husband’s claim, not on the widow’s claim.
Judgment affirmed.