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MILES v. MASTERS (05/27/53)

May 27, 1953

MILES, APPELLANT,
v.
MASTERS



Appeal, No. 188, Jan. T., 1953, from order of Superior Court, Oct. T., 1953, No. 23, quashing appeal from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1952, No. 6595, in case of Herbert Miles v. David Masters, trading as Aaron's, and Pennsylvania Threshermen & Farmers' Mutual Casualty Insurance Company. Order reversed.

COUNSEL

Samuel B. Brodsky, with him Alexander Brodsky, Harry E. Brodsky and Brodsky & Brodsky, for appellant.

Francis Logan, with him Robert C. Duffy, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 374 Pa. Page 128]

OPINION BY MR. JUSTICE JONES

The appellant-claimant obtained an award of compensation from the referee for total disability due to injury received by him in the course of his employment by the defendant. The employer and his insurance carrier appealed the award to the Workmen's Compensation Board which, on August 6, 1952, entered an order affirming the award of the referee. On August 15, 1952, the defendant and the insurance carrier appealed the order of the compensation board to the court of common pleas, served notice of the appeal on the claimant but did nothing more. On September 16,

[ 374 Pa. Page 1291952]

, the claimant entered a rule on the defendants to show cause why their appeal should not be quashed "Because it appears upon the face of the record herein that no exceptions sur appeal have been filed or served in the above entitled cause within the time [thirty days following the appeal] limited by law." The next day (September 17, 1952), which was thirty-three days after the appeal had been entered, the defendants filed exceptions. After argument on the motion to quash, the court of common pleas, on October 14, 1952, dismissed the motion; and, on October 21, 1952, the claimant appealed the order of dismissal to the Superior Court. The defendants then moved to quash the claimant's appeal to the Superior Court on the ground that it was premature and that the order was unappealable. On January 9, 1953, the Superior Court in a per curiam order, without an opinion, quashed the appeal. Because of the general importance of the procedural questions involved, we granted an allocatur.

There can be no doubt that the order of the court of common pleas was appealable. It goes to the jurisdiction of the court below to entertain the defendants' appeal from the order of the compensation board. See Act of March 5, 1925, P.L. 23, 12 PS ยง 672, the appellate provisions whereof in Sections 1 and 2 were not suspended by the Rules of Civil Procedure: see Rule 1451 (b) (7). The claimant's appeal to the Superior Court (within seven days of the entry of the common pleas order) was timely: see Section 3 of the Act of 1925, cit. supra; also Jones v. Unguriet, 364 Pa. 200, 71 A.2d 240. As the appealability of such an order had already been recognized by the Superior Court in Banks v. McClain, 156 Pa. Superior Ct. 512, 40 A.2d 905, it is not apparent how that court happened to quash the appeal in this case.

[ 374 Pa. Page 130]

In the McClain case, supra, the court of common pleas had entertained an appeal from an order of the Workmen's Compensation Board entered twenty-two days after service of notice of the order, whereas Section 427 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, requires that an appeal to the court of common pleas from an order of the board must be taken within twenty days of service of notice of the order unless the time be extended by the court for cause shown. In reversing the lower court's refusal to strike off the appeal as having been taken out of time, Judge BALDRIGE, in a well-considered opinion for the Superior Court, said, -- "It is mandatory that appeals from the board to the court of common pleas must be taken within 20 days after notice has been mailed [see Sec. 406] unless for cause shown the court grants an extension of time within the 20 day limit [citing cases]. No such application was made in this case." It was accordingly held that the court below was without jurisdiction of the matter and that the refusal to strike off the appeal was itself appealable. So far as appealability is concerned, the lower court's order in the instant case is indistinguishable in principle from the order in the McClain case. In that case, as already stated, the appeal from the board's order was not taken within twenty days from notice of the award, as required by Section 427 of the Act. Here, the appellants from the board's order did not perfect their appeal by filing exceptions, as required by Section 427, within thirty days from the taking of the appeal. Both matters related to the jurisdiction of the courts below in the premises.

The learned court below assumed to entertain the appeal in this case in the belief that it had the power, for cause shown (which it deemed to be present), to extend ...


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