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decided: January 21, 1975.


Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Royal Factories, Inc. and Pennsylvania Manufacturers' Association Insurance Company v. Balbino Garcia, No. 607 October Term, 1971.


Martin J. Fallon, Jr., with him John F. McElvenny, for appellants.

David Freeman, for appellee.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 17 Pa. Commw. Page 60]

Balbino Garcia (claimant) was employed by Royal Factories, Inc. (employer) in Philadelphia as a laborer,

[ 17 Pa. Commw. Page 61]

    at a salary of $77.10 per week, when, while at work on July 9, 1968, he fell and injured his left knee. On November 1, 1968 he entered into a compensation agreement with the employer for the payment of weekly benefits for total disability in the amount of $51.40 per week. On April 3, 1969 the employer filed a petition for termination and after hearings in March and July of 1970 a referee issued his decision finding partial disability and ordering the employer to pay benefits at the reduced rate of $45.00 per week. Both the claimant and the employer appealed this decision to the Workmen's Compensation Board of Appeals (Board). While this appeal was pending, the employer also filed with the Board a petition for rehearing under Section 426 of the Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 871. The petition was accompanied by affidavits which alleged that the claimant had resumed working on a daily basis at a new job in October of 1970 and that this new job required him to bundle newspapers and deliver them by car to various stores in Philadelphia at wages of $70.00 per week. On September 9, 1971 the Board issued its decision finding that the claimant was suffering from a 25% partial disability and awarded benefits at the rate of $12.82 per week. In response to the employer's petition for rehearing the Board merely concluded: "The Defendant's petition for a rehearing does not move us and is denied." The employer appealed from this decision, which was affirmed by the Court of Common Pleas of Philadelphia on October 15, 1973, and the employer now appeals to this Court.

Our scope of review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed or any necessary finding of fact by the Board was unsupported by substantial evidence. Arnold Coal & Supply Co., Inc. v. Markle, 8 Pa. Commonwealth Ct. 107, 300 A.2d 916 (1973).

[ 17 Pa. Commw. Page 62]

The employer here argues that the Board abused its discretion in failing to grant the petition for rehearing. We must agree. If the facts alleged in that petition were true, there was probably no loss of earning power as of October of 1970. In addition, the fact that the claimant was bundling and delivering newspapers three months after he testified that he was unable even to perform light factory work could certainly affect the believability of that prior testimony. In any case a rehearing would have certainly been appropriate in order for the employer to present its very relevant evidence on this matter and for the claimant to render an explanation.

The claimant argues that the employer should have filed a petition to terminate instead of a petition for rehearing. The law, however, is well settled that strictness of pleading in workmen's compensation cases is not required, and a petition presented under an improper section will be deemed to have been presented under the proper section. Lako v. Schlessinger, 208 Pa. Superior Ct. 85, 220 A.2d 665 (1966). In Mazzaccaro v. Jermyn-Green Coal Company, 154 Pa. Superior Ct. 618, 36 A.2d 828 (1944), where the factual situation was almost identical to that of this case, the court held that the Board erred in denying a petition for rehearing. In doing so the court reasoned:

"And when a tribunal has its attention called, prior to its adjudication, to an alteration of facts which, if disregarded, would lead it into error, the interests of justice require it to avoid the error, not stubbornly to commit it, and relegate the injured party to some procedure designed to correct the error after it is made." 154 Pa. Superior Ct. at 622, 36 A.2d at 829.

The court in Mazzaccaro, supra, also indicated that neither a petition for termination under Section 413,*fn1

[ 17 Pa. Commw. Page 63]

    nor a petition for rehearing under Section 426*fn2 was the proper procedure, since both of those sections refer to procedures which become available after the Board has taken final action. Instead, the court indicated that under Section 423*fn3 the Board is authorized to hear other evidence while the appeal of a referee's award is pending before it and that that section was the proper one under which to apply for rehearing during that time.*fn4

Our conclusion that the Board should have granted a rehearing obviously renders it impossible for us to determine whether or not the Board's decision was supported by substantial evidence. The record, as it presently stands, is simply incomplete.

We, therefore, reverse the order of the lower court and remand the record to the Workmen's Compensation Board with the instruction that the requested rehearing be granted.


Reversed and remanded.

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