This Court has repeatedly held that Workmen's Compensation is a system of compensation not imposed by law but established by agreement of the parties implied from their failure to express an intention to the contrary. In McIntyre v. Lavino Co.,344 Pa. 163, 168, *Page 554 25 A.2d 163, it was said: "When employer and employe accept compensation legislation their relation in regard to it becomes contractual and their rights are to be determined under its provisions: Liberato v. Royer Herr, 81 Pa. Super. 403,407, 408, affirmed 281 Pa. 227, 126 A. 257." Since claimant was in appellant's employ on the effective date of the Act of 1937 and neither party expressed an intention not to be bound by it, they voluntarily submitted to its terms and thereby appellant assumed the duty of paying compensation to claimant for total disability from silicosis should it subsequently reveal itself. Claimant in return gave up his right to sue in tort for the absolute certainty provided by the Act of receiving the compensation on bringing himself within its compensatory clauses: Moffett v. Harbison-Walker Co., 339 Pa. 112, 116,14 A.2d 111. In legal effect the parties, by failing to express an intention not to be bound by the Act, incorporated its terms into their contract as if expressly written therein. By the terms of his contract with the appellant existing on the effective date of the Act of 1939 claimant was entitled to compensation in lieu of common law damages. Such right is contractual rather than a right or benefit conferred by the statute itself; and repeal of the statute cannot abrogate such vested contractual right. Any conclusion to the contrary would shake the very foundations on which the validity of much of our system of Workmen's Compensation depends.
The real question is not whether claimant is entitled to compensation but whether his right thereto is governed by the Act of 1937 or by the Act of 1939. As the majority opinion points out, it is immaterial which Act applies so far as the question of the statute of limitations is concerned. Under either the Act of 1937 or the Act of 1939 the claim was filed in time. Not so, however, on the question of the amount of compensation payable by appellant. If the Act of 1939 applies appellant must pay 50% of the amount of the award; whereas, if the *Page 555 Act of 1937 controls appellant is liable only for two-tenths of the award. In the case of certain occupational diseases, including silicosis, the Act of 1937 provided (section 7) that the compensation shall "be payable jointly by the Commonwealth and the employer as follows: . . . during the first year . . . the employer shall be liable for and pay one-tenth of the compensation . . . Thereafter for each successive year of such ten-year period . . . the employer shall be liable for andshall pay one-tenth more of such compensation . . ." (Italics supplied). The majority hold that it is the Act of 1937 which supplies claimant with his substantive right to compensation, but conclude that the Act of 1939 applies in determining the amount appellant is obligated to pay. No impairment of the obligation of appellant's contract is involved in thus increasing the amount payable by it from $720 to $1800, according to the majority, on the theory that this is a mere administrative or procedural matter, or on the theory that the Act of 1937 imposed on the employer an absolute duty to pay the full amount of compensation awarded, and that the payments required to be made by the Commonwealth of the percentages fixed by the Act were mere voluntary gratuities in relief of such obligation. With this I cannot agree. The reasoning of the majority points to a conclusion that the claimant could not acquire a vested right to a continuation of the Commonwealth's contributions; but it does not satisfactorily answer appellant's contention, based on an assumption that it is the Act of 1937 which furnishes claimant's substantive right to compensation, that an impairment of the obligation of its contract with claimant is involved. "The amount of impairment of the substantive obligation of a contract is immaterial. Any deviation from its terms, however slight, falls within the meaning of the constitution: Greene v. Biddle, 8 Wheat. 1, 84;Ogden v. Saunders, 12 Wheat. 213, 256; Walker v. Whitehead, 16 Wall. 314, 318": Beaver Co. B. L. v. Winowich et ux., 323 Pa. 483,493. *Page 556
Claimant's rights, procedural and substantive as well, remained under the Act of 1939. When that Act was enacted claimant's employment with the appellant had terminated but his contract with appellant had not. The contractual provisions relating to compensation for disability from silicosis continued in operation down to the effective date of the Act of 1939. There was, on that date, a contract of hiring in operation within the language and intendment of section 302 (a) of that Act, providing that "Every contract of hiring, oral, written, or implied from circumstances, now in operation . . .shall be conclusively presumed to continue subject to theprovisions of article three hereof . . . unless either party shall . . . [give notice] . . . that the provisions of article three hereof are not intended to apply." (Italics supplied.) Neither party having expressed an intention not to be bound thereby, it follows that the Act of 1939 applies. By their failure to express an intention to the contrary, in a manner provided by section 302(a), the parties have agreed that their contract be modified accordingly: McIntyre v. Lavino, supra, 168.
For the reasons stated I concur in the conclusion of the majority that the judgment of the Superior Court be affirmed.