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FINDLAY REFRACTORIES CO. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO. v. WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN P. HARVEY (05/30/74)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 30, 1974.

FINDLAY REFRACTORIES CO. AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE CO., INSURANCE CARRIER, APPELLANTS,
v.
WORKMEN'S COMPENSATION APPEAL BOARD AND JOHN P. HARVEY, APPELLEES

Appeal from the Order of the Workmen's Compensation Appeal Board in case of John P. Harvey v. Findlay Refractories Co., No. F.M. 3012.

COUNSEL

Harold V. Fergus, Jr., with him Fergus, Martin and Fergus, for appellants.

Sanford S. Finder, for appellee, Harvey.

Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Kramer.

Author: Kramer

[ 13 Pa. Commw. Page 280]

This is an appeal by Findlay Refractories Company (Findlay) from an order of the Workmen's Compensation Appeal Board (Board) awarding medical expenses to John P. Harvey (Harvey).

Notice of the Board's order awarding medical expenses to Harvey was mailed to the parties on April 4, 1973. Findlay apparently mailed its appeal to this Court on April 24, 1973. The appeal was received and filed on April 27, 1973, 23 days after the mailing of notice.

The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, § 427, as amended, 77 P.S. § 873, requires that appeals to this Court be taken within 20 days after notice of the Board's action has been served. The Workmen's Compensation Act also provides that such notices shall be deemed served on the date mailed. Since the mailing of an appeal to this Court does not constitute the filing of said appeal, Findlay's appeal, which was received and filed on April 27, 1973, was filed three days beyond the 20-day statutory appeal period. See General v. E. Roseman Co., 10 Pa. Commonwealth Ct. 569, 312 A.2d 609 (1973).

The issue raised by the untimely filing of the appeal is jurisdictional, and therefore, absent fraud or sufficient extenuating circumstances (none of which is shown on this record), this Court is precluded from reaching a decision on the merits of the appeal. See General, supra.

Therefore, we

Order

And Now, this 30th day of May, 1974, the appeal of Findlay Refractories Company is hereby dismissed and judgment is entered in favor of John P. Harvey and against Findlay Refractories Company and/or its insurance

[ 13 Pa. Commw. Page 281]

    carrier, for medical expenses totaling $965.00; said sum is to be paid to Dr. Wilson B. Pizzi for medical treatment rendered to John P. Harvey.

Disposition

Appeal dismissed. Judgment for petitioner.

19740530

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