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BUFF v. FETTEROLF (12/16/65)

decided: December 16, 1965.

BUFF, APPELLANT,
v.
FETTEROLF



Appeal from order of Court of Common Pleas No. 3 of Philadelphia County, June T., 1963, No. 5413, in case of Harry W. Buff v. Daniel Fetterolf et al.

COUNSEL

Don F. D'Agui, with him Albert Ring, and D'Agui & Del Collo, for appellant.

Richard D. Harburg, with him Swartz, Campbell & Detweiler, for insurance company, appellee.

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

Author: Watkins

[ 207 Pa. Super. Page 94]

In this workmen's compensation appeal the Court of Common Pleas No. 3 of Philadelphia County affirmed the decision of the Workmen's Compensation Board that at the time of the accident to the claimant-appellant, Harry W. Buff, there was no contract of workmen's compensation insurance existing between Daniel Fetterolf, the defendant-employer and Employers Mutual Liability Insurance Company of Wisconsin, the defendant-appellee. The referee had decided that there was insurance coverage.

The record discloses that the employer and the company negotiated a contract of workmen's compensation insurance and, after payment of the initial premium, the employer was covered for a period effective March 27, 1961, to March 27, 1962. The policy number was 221300028109. In March 1962 the employer was billed for a renewal premium of $144.75 to extend the coverage from March 27, 1962, to March 27, 1963. The employer delayed payment awaiting the payroll audit which determines his refund from the prior policy. On May 23, 1962, the insurance company sent notice to the employer and the Pennsylvania Compensation Rating and Inspection Bureau that the policy was cancelled as of June 8, 1962. This cancellation was on a printed form 315-2202 Form R10. The reason for cancellation was nonpayment of premium.

[ 207 Pa. Super. Page 95]

The accident occurred on June 14, 1962. On the same day notice of the accident was given to the insurance company by a telephone call from the rating bureau. Notice of this telephone call and the data concerning the accident was immediately reduced to memorandum form, by an employee of the company and made a part of the employer's file. This memorandum is a part of this record. No notice of the accident was given to the company by the employer. On the day of the accident the employer sent a check to the company in the amount of $144.75 as billed him by the insurance company to renew policy number 221300028109 for the period 3/27/62 to 3/27/63. The company received the check on June 15, 1962, at which time it had notice of the accident. The company, through its employees, in the regular course of its business, cashed the check by depositing it and endorsing it as follows: "Per Account of Daniel Fetterolf, 8 First Street, Lansdowne, Pa. Premium $144.75 paid in full. Acct. No. 221300028109." This account number was the policy number. The policy in question is marked with an X under "renewal" and the dates of coverage are from 3/27/62 to 3/27/63.

The insurance company sent a second notice of cancellation to the rating bureau indicating the effective date of cancellation to be July 3, 1962. This notice was of no legal effect as the policy had already been effectively cancelled as of June 8, 1962.

The insurance company after receipt and deposit of the premium, and notice of the accident, sent a reinstatement notice to the rating bureau, as required, indicating that the policy of the employer was reinstated as of June 8, 1962. No such notice was sent to the employer. On June 28, 1962, the insurance company sent a letter to the rating bureau stating that the reinstatement notice of June 26, 1962, was sent in error and should be ignored. This letter was sent at the request of the rating bureau after a telephone conversation

[ 207 Pa. Super. Page 96]

    between the bureau and the company ...


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