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GONZALES v. O'DONNELL'S BROAD STREET BAR (09/17/64)

decided: September 17, 1964.

GONZALES
v.
O'DONNELL'S BROAD STREET BAR, INC. ET AL., APPELLANTS



Appeal from order of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1963, No. 2498, in case of Annetta M. Gonzales v. O'Donnell's Broad Street Bar, Inc. et al.

COUNSEL

George P. Williams, III, with him Penrose Hertzler, and Schnader, Harrison, Segal & Lewis, for appellants.

Murray C. Goldman, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Watkins, J.

Author: Watkins

[ 204 Pa. Super. Page 171]

This is an appeal in a workmen's compensation case from an order of the Court of Common Pleas No. 1 of

[ 204 Pa. Super. Page 172]

Philadelphia County discharging a rule to show cause why the judgment entered upon an award in favor of the plaintiff-appellee, Annetta M. Gonzales, and against the defendants-appellants, O'Donnell's Broad Street Bar, Inc., and Coal Operators Casualty Company, should not be opened.

The procedural history is as follows: On October 9, 1960 the plaintiff claimed an injury as the result of an accident. On May 31, 1962 an award was made by the referee in favor of the plaintiff for total disability. This award was appealed to the Workmen's Compensation Board. While the appeal was pending the defendants subjected the plaintiff to another physical examination and offered their doctor's report in evidence before the board to be considered in the pending appeal.

The board did consider the report of the defendant's doctor, although submitted ex parte, and, notwithstanding this additional evidence affirmed the referee's decision, modifying only the finding related to the amount of payment for medical expenses. The board's award was for the payment of benefits for total disability for an indefinite period. The date of the order was August 1, 1963. No appeal was taken from the board's final order. Subsequent to the passage of the twenty-day appeal period, to wit: On September 23, 1963, the defendants filed a petition to terminate as of September 21, 1962, eleven months prior to the end of the appeal period from the board's order. Under the Workmen's Compensation Law the petition to terminate acts as a supersedeas as of the date of filing, September 23, 1963. In reliance on this petition the defendants made a tender of payment up to September 21, 1962 which was rejected. Judgment was entered on the sum fixed by the board and execution issued.

The defendants then filed two petitions in the Court of Common Pleas No. 4, one to strike plaintiff's judgment

[ 204 Pa. Super. Page 173]

    and one to stay execution. The petitions claimed that the sum was entered for too much money because of the pending petition to terminate and their contention that recovery took place on September 21, 1962. The petition and answer were argued before the Court of Common Pleas No. 4, sitting en banc, and in an opinion by Judge Alexander it was held that the defendants' claim was invalid because of ...


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