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ANGELACCIO v. KAISER FLEETWINGS (04/18/63)

April 18, 1963

ANGELACCIO
v.
KAISER FLEETWINGS, INC. ET AL., APPELLANTS.



Appeal, No. 381, Oct. T., 1962, from order of Court of Common Pleas No. 7 of Philadelphia County, June T., 1962, No. 517, in case of Arthur Angelaccio v. Kaiser Fleetwings, Inc. et al. Judgment stricken off.

COUNSEL

Alexander F. Barbieri, with him Barbieri and Sheer, for appellants.

Allen T. Newman, with him Klovsky and Kuby, for appellee.

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

Author: Montgomery

[ 200 Pa. Super. Page 609]

OPINION BY MONTGOMERY, J.

Appellee-claimant, having received an injury to his hand on June 15, 1961 in the course of his employment as a die setter, entered into an open compensation agreement with his employer, Kaiser Fleetwings, Inc., and its insurance carrier, Lumbermens Mutual Casualty Company, appellants, for an indeterminate period of time at $42.50 per week on the basis of total disability. The Workmen's Compensation Board approved the agreement on August 10, 1961. Payments totaling $1,408.57 were made under it until February 2, 1962, when they were stopped because of his return to work

[ 200 Pa. Super. Page 610]

    at Kaiser as a janitor at the same wage he had earned previously as a die setter.

At or about the time he returned to work he was asked by appellants to sign a supplemental agreement suspending his compensation payments. He did not sign it, and after several months of negotiation with appellants he returned it to them unsigned on June 4, 1962.

On June 12, 1962 claimant, through his counsel filed a copy of his original agreement with the prothonotary of the Common Pleas Court No. 7 of Philadelphia County and directed him to enter judgment thereon for $30,000 less $1,408.57, the amount of compensation received by him up until February 2, 1962. This action was intended to be pursuant to section 428 of the Workmen's Compensation Law, as amended. Act of December 28, 1959, P.L. 2034, ยง 6, 77 P.S. 921(PP). The praecipe to the prothonotary recited that, "The last payment was made to him as of February 2, 1962", although it did not expressly state that appellants were in default thereafter.

On June 1., 1962, appellants filed with the Workmen's Compensation Board a petition for termination or modification of the agreement, averring February 2, 1962 to be the date of termination of its obligation to pay compensation thereunder; and on June 20, 1962, they petitioned the court to strike off the judgment or in the alternative to open it, and for a supersedeas. Claimant answered the rule to show cause issued on this petition, and after argument the lower court refused to strike the judgment or allow a supersedeas but ordered the judgment opened except as to $661.44 which "shall remain in effect and not be opened".

The petition to strike the judgment was based on two reasons: (a) the judgment for $30,000 less payments was the amount specified in section 428 for total and ...


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