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FULTON v. PHILADELPHIA RUSTPROOF CO. (04/18/63)

April 18, 1963

FULTON, APPELLANT
v.
PHILADELPHIA RUSTPROOF CO.



Appeal, No. 74, Oct. T., 1963, from order of Court of Common Pleas No. 1 of Philadelphia County, June T., 1962, No. 1634, in case of Chester Fulton v. Philadelphia Rustproof Co. et al. Order affirmed; reargument refused May 8, 1963.

COUNSEL

Jerrold V. Moss, with him Jerome H. Ellis, for appellant.

Frederick W. Anton, III, with him Paul H. Ferguson, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 200 Pa. Super. Page 468]

OPINION BY ERVIN, J.

In this workmen's compensation case the claimant met with an accident on August 23, 1957 but did not file a petition for workmen's compensation until February 17, 1959, seventeen months and twenty-five days after the accident. The referee, after the first hearing, disallowed the claim because it was not filed within the sixteen-month period. The board sustained an appeal from the referee's decision and remanded the matter to the referee for further hearing on the merits. The referee then filed an adjudication awarding compensation

[ 200 Pa. Super. Page 469]

    to the claimant. The defendant then appealed to the board. The board sustained the referee's findings and made an award to the claimant. On appeal the court below reversed the board disallowed the claim.

The sole question at issue is whether there was adequate, competent evidence to support the finding of the board that defendant, by the conduct of its representatives, was estopped from asserting the limitations set forth in § 315 of the act. Section 315 of The Pennsylvania Workmen's Compensation Act, as amended, 77 PS § 602, provides as follows: "In cases of personal injury all claims for compensation shall be forever barred, unless, within sixteen months after the accident, the parties shall have agreed upon the compensation payable under this article; or unless within sixteen months after the accident, one of the parties shall have filed a petition as provided in article four hereof."

The courts may not extend the period ex gratia in aid of a meritorious claim or to relieve against the hardship of particular circumstances: Lewis v. Carnegie-Ill. Steel Corp., 159 Pa. Superior Ct. 226, 229, 48 A.2d 120; Mackanitz v. Pittsburgh & West Va. Rwy. Co., 157 Pa. Superior Ct. 359, 364, 43 A.2d 586.

However, the courts will permit a claim to be filed after the time prescribed in the statute if fraud or its equivalent is shown, which in this connection includes an unintentional deception. The evidence to support such a claim must be clear and precise, more than of doubtful weight: Rowles v. State Workmen's Ins. Fund, 141 Pa. Superior Ct. 193, 200, 14 A.2d 551; Thorn v. Strawbridge & Clothier, 191 Pa. Superior Ct. 59, 62, 155 A.2d 414. Of course the credibility of the witnesses and the weight ...


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