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SKODA v. NATIONAL MINES CORPORATION (12/12/68)

decided: December 12, 1968.

SKODA, APPELLANT,
v.
NATIONAL MINES CORPORATION



Appeal from order of Court of Common Pleas of Westmoreland County, Jan. T., 1967, No. 907, in case of Virginia Skoda, widow of Frank B. Skoda, Jr., v. National Mines Corporation et al.

COUNSEL

Thomas A. Livingston, with him Livingston, Miller & Haywood, for appellant.

George I. Buckler, with him Meyer, Darragh, Buckler, Bebenek & Eck, for appellee.

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

Author: Watkins

[ 213 Pa. Super. Page 490]

This is an appeal by Virginia Skoda, widow, the appellant, from the order of the Court of Common Pleas of Westmoreland County dismissing exceptions filed by her to the order of the Workmen's Compensation Board that awarded the lump sum balance due under a workmen's compensation agreement in the amount of $7000 to the appellee, West Penn Power Company.

On June 24, 1957 Frank B. Skoda, Jr., the late husband of the appellant, was injured at work as an employee of National Mines Corporation and died on August 17, 1957 as a result of his injuries. Thereafter, his widow instituted Survival and Wrongful Death actions in the Court of Common Pleas of Westmoreland County against the West Penn Power Company. The company later joined the employer, National Mines Corporation as an additional defendant. The Wrongful Death action was dismissed because it was filed after the running of the statute of limitations. The

[ 213 Pa. Super. Page 491]

    trial of the Survival Action resulted in a verdict in favor of the appellant against both defendants, in the sum of $152,213, which verdict was reduced by the Supreme Court of Pennsylvania to $136,896.62. In making payment of the final judgment to the administratrix of the estate and her attorney, West Penn Power Company, by agreement, and without objection, took credit for compensation paid to the decedent and to the widow and her children, to the date of June, 1963, in the sum of $10,408.70.

The compensation agreement entered into by the decedent provided for payments at the rate of $37.50 weekly. After the death of Frank Skoda, Jr., the appellant herein, for herself and two minor children entered into a compensation agreement which set forth her benefits under the Act. The compensation paid to the decedent and on his death to his widow up to June, 1963 amounted to $10,408.70, which was credited to West Penn Power Company without objection. In July, 1963 the appellant executed a petition to modify the agreement. This petition recited that the West Penn Power Company was entitled to all future compensation payments. The petition also requested commutation of future payments to a lump sum of $7000. On October 2, 1963 the appellant, with counsel, appeared and made no objection to the commutation.

The question before the court below and on appeal before this Court is the determination of whether the appellant and her minor children or West Penn Power Company are entitled to the commutated sum of $7000 still due. The Workmen's Compensation Board decided that the West Penn Power Company is entitled to the balance of compensation due. The court below agreed with the Board. This appeal followed.

The appellant bases its argument solely on the fact that under the Survival Action ...


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