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OVERMILLER v. D. E. HORN & CO. (03/24/60)

March 24, 1960

OVERMILLER
v.
D. E. HORN & CO., INC., APPELLANT.



Appeal, No. 20, March T., 1959, from order of Court of Common Pleas of York County, Aug. T., 1956, No. 314, in case of W. Luther Overmiller v. D. E. Horn & Co., Inc. et al. Order reversed.

COUNSEL

Robert O. Beers, with him Fisher, Ports, May & Beers, for appellants.

Harry I. Weisbord, with him J. Ross McGinnis, and Gitman & Weisbord, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 191 Pa. Super. Page 564]

OPINION BY WOODSIDE, J.

W. Luther Overmiller filed a workmen's compensation claim on September 16, 1953, alleging that he suffered a compensable injury on March 19, 1953. After hearing testimony, which showed that the claimant suffered a heart attack, the referee filed his decision on March 17, 1954, disallowing compensation on the ground that the claimant's disability was due to natural

[ 191 Pa. Super. Page 565]

    causes not connected or associated with an a cident.

The claimant appealed to The Workmen's Compensation Board, but subsequently requested permission to withdraw the appeal. The board granted the claimant's request on June 7, 1954. More than a year later, on August 4, 1955, the claimant filed a petition for a rehearing. The board took no action on this petition until July 13, 1956, when it granted the claimant's request. From the order granting the rehearing, the defendant appealed to the Court of Common Pleas of York County, contending that the board had no authority to order a rehearing because the petition was filed more than one year after the date of the order sought to be reheard.

In its opinion, the court said, "... it seems crystal clear from the authorities that claimant is definitely barred by Section 426 of the Act in force at the time and the amendment of 1956 is of no avail." It concluded, however, that the order of the board was interlocutory, and dismissed the appeal. The defendant then appealed that order to this Court.

Section 426 of The Pennsylvania Workmen's Compensation Act of June 2, 1915, P.L. 736, as last amended prior to 1956, 77 PS ยง 871, provided, inter alia, as follows: "The board, upon petition of any party and upon cause shown... may grant a rehearing of any petition upon which the board has made an award or disallowance of compensation or other order or ruling, or upon which the board has sustained or reversed any action of a referee; but such rehearing shall not be granted more than one year after the board has made such award, disallowance or other order or ruling,..."

In applying this provision to the matter before us there can be no doubt that the claimant's petition for

[ 191 Pa. Super. Page 566]

    rehearing was filed too late and is barred by the statute. The board lacked authority to consider it.

In Dolan v. Commonwealth of Pennsylvania, 106 Pa. Superior Ct. 74, 77, 78, 161 A. 763 (1932), this Court said concerning the above section: "The words of the statute, 'shall not be granted,' are clear and precise, and are capable of only one interpretation, and that is, that the board does not, under the provisions of the act, have any power to grant a rehearing more than one year after it has sustained or ...


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