Opinion by
Thе question involved in this appeal is whether an employe who had terminated his employment prior to the acceptance by thе employer of the provisions of Article III of the Pennsylvania Occupational Disease Act of June 21, 1939, P. L. 566, 77 PS §1401, is entitled to the benefits of its provisions.
The referee awarded compensation; the Board reversed the referee and vacated the award; the Court of Common Pleas of Luzerne County reversed the Board and reinstated the award. The facts as found by the referee have been agreed tо by all the parties in interest *566 and there is no question as to the competency or sufficiency of the evidence on which the findings were mаde. Briefly stated they are as follows: Fred Kozak left the employ of the Lehigh Valley Coal Company April 3, 1943. Prior thereto the coal company, upon approval by the Governor of the Occupational Disease Act, had promptly rejected it in the manner рrovided by section 302 thereof. It did not accept the elective compensation agreement of the Act until May 31, 1946. Kozak, who had bеen employed by the Bethlehem Steel Company at its Steelton plant from September 8, 1943, to November 10, 1945, during which employment he was not exposed to the dust of silicon dioxide, on August 10, 1946, became totally disabled “as a direct result of silicosis contracted while he was ... an employe of the defendant company.” Prior thereto he had become mentally ill and his wife was appointed his guardian.
The referee concluded “That both the claimant and the defendant were bound by the provisions of Article III of the Pennsylvania Occupational Disease Act.” The Board affirmed the referee’s findings of fact but vacated his conclusions of law and the award and made the following conсlusions:
“1. The claimant and the defendant were not bound by the provisions of Article III of the Occupational Disease Act of 1939 as amended.
“2. That since the claimant was employed by the defendant solely during the period of rejection, of the Occupational Diseasе Act and became disabled after the defendant’s acceptance, the claimant is not entitled to receive compensation.”
Article III, titled “Elective Compensation,” section 301 (a), provides, in part, as follows: “When employer and employe shall by agreement, either express or implied, as hereinafter provided, accept the provisions of article three of this act, compensation for disability or death of such employe, caused by occupational disease *567 arising out of and in the course of his employment, shall be paid by the employer, . -. Section 302 (a), 77 PS §1402, provides a method of rejection, and the provisions thereof were complied .with by'the employer.
. In addition to those of the appellants and the appellee, briefs have been filed under Rule 61 on bеhalf of the Pennsylvania Districts* United -Mine Workers of America, by the Coal, Operators Casualty Company, the Grlen Alden Coal Company, and several other coal and casualty companies* all of which are interested in the question involved,. •
The case turns on whether liability for сompensation for total disability resulting from, silicosis depends on the effective date of the Occupational Disease Act or on the effective date of its acceptance or rejection by the employer. The learned court below held that-, since the employer had accepted the Act before the employe .became totally .disabled, although he had prior thereto left its employ, he nevertheless was entitled to compensation..
While recognizing that the facts in
McIntyre v. E. J. Lavino & Co.,
“When employer and employe accept compensation legislation their relation, in' regards, tо. it becomes contractual and their rights are to be determined under its provisions: Liberato v. Royer & Herr,81 Pa. Superior Ct. 403 , 407, 408, affirmed281 Pa. 227 ,126 A. 257 . Since, *568 therefore, McIntyre was in the employ of defendant on the effective date of the Occupational Disease Compensation Act, and the parties did not, then or thеreafter, express their intention not to he hound hy it, they voluntarily submitted themselves to its terms, including the provision of section 3, so that defendant assumеd thereby the duty of paying compensation to McIntyre if disability from occupational disease should subsequently reveal itself. Had McIntyre’s employment ceased before January 1, 1938 [the effeсtive date of the earlier Occupational Disease Act], a different question would he presented.” (Italics supplied.)
And while we said in the
Anderson
case, supra, at page 625, “There is sound reason for the extension of the time that protection is afforded for an occupational disease resulting from exposure to unhealthful conditions ovеr a long period, as disability often does not manifest itself until after the employment has ceased: McIntyre v. Lavino & Co. et al.,
In
Keim v. Cambria Fuel Co.,
“The Workmen’s Compensation Act and its cognate statute, the Oсcupational Disease Compensation Act, are based on an existing relation of master and servant, or employer and emрloyee; and that relation had to subsist at the time they became effective, in order to create the new contractual relationship established by their acceptance, express or implied, of those acts. The procedure established under their provisions is not applicable to cases wherе no relationship of employer and *569 employee was in existence 'when they became effective. Section 4 of the Occupational Disease Compensation Act limits its application to cases ‘when an employer and employe shall be: subjeсt ‘to the próvisions of article three of the Workmen’s.Compensation Act as therein provided’; and section 301 of the Workmen’s Compensаtion Act limits its provisions to cases ‘when employer and employe shall by agreement, either express or implied, as hereinafter рrovided, accept the provisions of article three of this act’” (Italics supplied.)
The latter quotation from section 301 (a) of the Workmen’s Compensation Act’is identical with the language in section 301 (a) of the Occupational Disease Act.
The judgment is reversed and here entered for defendant.