The death of a Pennsylvania woman who fought a discrimination battle for the right to be a coal miner has left her husband facing the possibility of discrimination fight of his own.

Marilyn McCusher, 35 is believed to be the first woman in U.S. coal mining history to die in a deep mine accident. She was killed earlier this month.

A state law on workmen's compensation apparently prohibits Alan L. McCusker, a 28-year-old unemployed construction worker, from collecting maximum allowable benefits in connection with the death of his wife. And, according to state officials, that prohibition seems to rest solely on the fact that McCusker is a widower and not a widow.

Mrs. McCusker died Oct. 2 in an accident at the Rushton Mine near Osceola Mills in central Pennsylvania, the same mine she successfully sued three years ago in an employment discrimination case. She died of asphyxiation and shock after a portion of a mine wall collapsed. No one else was injured.

James R. McCarron, a spokesman for Pennsylvania's Department of Labor and Industry, said that Mrs. McCusker's 16-year-old son by a previous marriage will be entitled to benefits of about $130 a week until he is 18, or 23 if he attends college.

But McCarron said McCusker apparently is not eligible for survior's benefits under a section of the Pennsylvania Workmen's Compensation Law that prohibits payments to a widower "unless he is incapable of self support at the time of his wife's death and be at such time dependent upon her for support,"

There is no comparable section of the law covering widows.

McCarron said a woman survivor in a similar case in Pennsylvania would be entitled to up to $227 a week, currently among the highest in the nation.

McCusker met over the weekend with attorneys for the United Mine Workers union, who said they would represent him in seeking maximum benefits.

"While no amount of money can ever make up for what I lost, I think this whole thing is unreal and I plan to fight it all the way," McCusker said.

McCusker, who lives near Coalport in the heart of the Pennsylvania coal region, quit his job as a construction foreman shortly after his wife became a miner in August 1977. He said he did so because of a substantial cash settlement in the discrimination suit and in order to avoid higher income taxes.

He added he has not worked since then because he has been building what he called "the family's dream house," which is about 70 percent completed. w

The McCuskers were married in December 1975. At the time, Marilyn McCusker was fighting the Rushton Mining Co. of Philipsburg, Pa., charging that the company refused to hire her as a miner because she was a woman.

That fight, which began in December 1974 and eventually included three other Coalport area women, resulted in an out-of-court settlement in the fall of 1977. The settlement included jobs as miners, retroactive seniority and nearly two years of back wages totaling more than $30,000 per plaintiff.

Mary Ellen Krobar, a Harrisburg attorney who represented the four women in the federal suit against Rushton, said she avoided publicity so that her clients could be more easily integrated with male coal miners in the event of a successful outcome.

"Most of the women were working in a garment factory doing piecework for about $75 a week. Each was a breadwinner, and the starting salary at the mine was $50 a day. That pure and simple, was the reason they wanted the jobs," Krobar said.

McCusker said Marilyn loved working the mine and often wore a company jacket emblazoned with the slogan "We Dig Coal." He said she was earning about $380 a week at the time of her death.

McCusker said his wife was known for being an extremely cautious miner and "often would tell the guys she was working with that they should pay more attention to mine safety rules." He added, "Her getting killed the way she did really a twist of fate."

There could be another twist. Mrs. McCusker was killed one mile into the mine that straddles two counties. Clearfield and Centre, and it hasn't been determined which county she was in. Any court action in Centre County would go before the only Common Pleas judge in that county, Richard Sharp. At the time of Marilyn McCusker's suit, against Rusthon, Sharp was the defense counsel for the company.