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CASEY v. DONUT FAIR (12/14/67)

decided: December 14, 1967.

CASEY, APPELLANT,
v.
DONUT FAIR, INC.



Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1964, No. 1903, in case of Mary Lee Casey v. Donut Fair, Inc. et al.

COUNSEL

Carl M. Mazzocone, with him Sheer & Mazzocone, for appellant.

Richard D. Harburg, with him Swartz, Campbell & Detweiler, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Montgomery and Jacobs, JJ., dissent.

Author: Watkins

[ 211 Pa. Super. Page 325]

This is an appeal in a workmen's compensation case from the judgment of the Court of Common Pleas No. 3 of Philadelphia County by the claimant-appellant, Mary Lee Casey, widow of William R. Casey, deceased, employee of Donut Fair, Inc., the defendant-appellee, holding that the claimant decedent was not in the course of his employment at the time he met his death in an automobile accident and so is not entitled to benefits.

The procedural history is important in the disposition of this appeal. The Referee awarded benefits; the Workmen's Compensation Board affirmed on March 12, 1964; the accident occurred in Montgomery County; the claimant was a permanent resident of Montgomery County; and the permanent place of business of the defendant corporation was in Montgomery County.

Section 427 of the Workmen's Compensation Law, 77 PS § 872, reads as follows: "Any party may appeal from any action of the board on matters of the law to the court of common pleas of the county in which the accident occurred or of the county in which the adverse party resides or has a permanent place of business, or, by agreement of the parties, to the court of common pleas of any other county of this Commonwealth: . . ."

This clearly shows absence of jurisdiction of the subject matter in Philadelphia County except by express agreement of the parties entered into and the appeal taken before the expiration of the statutory twenty-day period provided in § 427 of the Workmen's Compensation Law, 77 PS § 873. The defendant filed its appeal eighteen days after the decision of the Workmen's Compensation Board in Philadelphia County. On September 23, 1964, claimant-appellant's counsel entered an appearance and at the same time a motion to quash on the jurisdictional ground and for the further purpose of substituting new counsel for counsel

[ 211 Pa. Super. Page 326]

    that had withdrawn. In the meanwhile a petition was filed by the appellee for a rehearing before the board while the appeal was pending, which was denied by the board and is unappealed from.

Judge Kelley of the court below, after argument, held that although it is admitted that there was no express agreement as provided in the Act, that the entry of an appearance, which the court treated as a general appearance, accomplished a waiver of the jurisdictional defects. Claimant-appellant's petition to quash was denied. A petition to reconsider and permit a hearing on the matter was filed before Judge Kelley, which was also denied.

The claimant-appellant appealed to the Superior Court from both decisions of Judge Kelley. The appeals were denied, in the one instance, as interlocutory, and in the other, that more than fifteen days had passed since the date of the order. The orders of this Court ...


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