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IACOPONI v. PLISKO (11/27/63)

November 27, 1963

IACOPONI
v.
PLISKO, APPELLANT.



Appeals, Nos. 137 and 219, March T., 1963, from order of Court of Common Pleas of Washington County, Nov. T., 1957, No. 85, in case of Dino Iacoponi v. Frank Plisko and Louis Grossi, also known as Louis Groce, trading and doing business as The West Brownsville Iron & Metal Company. Order vacated.

COUNSEL

Stephen D. Marriner, with him McCreight, Marriner & McCreight, for appellants.

Harry Alan Sherman, with him Howard F. Carson, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Musmanno

[ 412 Pa. Page 577]

OPINION BY MR. JUSTICE MUSMANNO

On September 18, 1955, Dino Iacoponi, while working on the roof of the Crescent Coal Tipple in Washington County, fell to the ground when that part of the roof where he was working collapsed. He sustained grave injuries which have apparently permanently crippled him with a complete paralysis of his lower extremities.

He filed a complaint in trespass against Frank Plisko and Louis Grossi, and Louis Grossi, a/k/a Louis Groce, t/d/b/a The West Brownsville Iron & Metal Company, who were engaged in dismantling the coal tipple in question, charging them with negligence in having removed certain supports from the roof without so informing the plaintiff and in having failed to supply him with a safety belt which would have saved him from the fall.

The plaintiff pointed out in his complaint that some time during the first week of September, 1955, he entered into an oral contract with the defendants whereby he, the plaintiff, was to supervise and accomplish the demolition of the Crescent Coal tipple, that the defendants were to supply him with all materials needed for the demolition and that, in compensation, he, the plaintiff, was to receive one-third of the value of the scrap recovered from the undertaking.

The defendants filed an answer denying the contract referred to, and averred that, on the contrary, the plaintiff had been hired as an employee of the defendants. Further, that after the accident the plaintiff entered into an agreement to receive workmen's compensation for his injuries, and had been receiving such compensation ever since. They accordingly claimed that the plaintiff was estopped from initiating a trespass action against them, and moved for judgment on the pleadings. The court of common pleas sustained

[ 412 Pa. Page 578]

    the motion, and, on November 10, 1958, entered judgment for the defendants and against the plaintiff.

On September 25, 1962,*fn1 the plaintiff, through attorneys, filed a petition to open and vacate this judgment alleging that he had received no notice of its having been filed, and that the judgment was founded upon an erroneous premise since he had never been an employee of the defendants. He then charged the defendants with having obtained the compensation agreement from him through fraud, namely, "The Workmen's Compensation agreement dated October 24, 1955, was obtained from petitioner-plaintiff while petitioner-plaintiff was in the hospital suffering from hemiplegia, shock and other serious internal injuries and upon the misrepresentation that the said agreement was for the purpose of securing payment of the hospital and medical bills for petitioner-plaintiff only. Petitioner-plaintiff had no counsel and no competent advice and was unable to read or understand the import of the compensation agreement executed under said circumstances."

He averred further: "At no time until the discovery of the said order of court in the month of September 1961, was petitioner-plaintiff physically able to leave a wheel chair or to travel from his home in Centerville to Washington, Pennsylvania, for the ...


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