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HATBORO-HORSHAM SCHOOL DISTRICT AND CNA/INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (04/21/78)

decided: April 21, 1978.

HATBORO-HORSHAM SCHOOL DISTRICT AND CNA/INSURANCE COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FLORENCE TIMMINS, WIDOW OF GEORGE TIMMINS, DECEASED, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Florence Timmins, Widow of George Timmins, deceased, v. Hatboro-Horsham School District, No. A-72024.

COUNSEL

William F. Sweeney, with him David L. Pennington, and Harvey, Pennington, Herting & Renneisen, Ltd., for appellant.

Robert J. Edelmayer, with him McLafferty & Edelmayer, P.C., and James N. Diefenderfer, for appellees.

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

Author: Blatt

[ 35 Pa. Commw. Page 75]

The Appellants, the Hatboro-Horsham School District and CNA Insurance Company, appeal here from an order of the Workmen's Compensation Appeal Board affirming a referee's award of compensation to Florence Timmins, the widow of George Timmins (decedent).

The decedent was employed for approximately one year as a carpenter and mechanic by the Appellant School District. The findings of fact indicate that he suffered an "accident" in the course of his employment on November 24, 1971, as a result of kneeling on a cold cement floor most of the day. This, it is alleged, caused his right knee to become swollen and infected. The referee found that although the infection was successfully removed from the knee by several operations, the infectious process in the decedent's system aggravated his pre-existing medical problems, thus causing his death. Benefits were awarded to the decedent's widow based upon her Fatal Claim Petition filed under The Pennsylvania Workmen's Compensation Act*fn1 (Act). The Appellants argue that this award of compensation must be reversed because the referee based his findings on incompetent hearsay testimony and he improperly applied the unusual pathological result doctrine.

In order to be granted benefits on a Fatal Claim Petition a claimant has the burden of establishing

[ 35 Pa. Commw. Page 76]

    that his or her spouse's death was causally related to a compensable injury. City of Johnstown v. Workmen's Compensation Appeal Board, 33 Pa. Commonwealth Ct. 464, 381 A.2d 1355 (1978). The decedent's wife testified that her husband had spent November 24, 1971 kneeling on cold cement while working on his employer's snow blower and that evening had complained of pain and developed swelling in his right knee. The decedent's physician testified that the decedent had informed him he had sustained his knee injury while at work. The Appellants maintain that the testimony elicited as to where the injury may have been sustained falls outside the res gestae exception to the hearsay rule. Justice Eagen in the landmark decision of our Pennsylvania Supreme Court, Cody v. S.K.F. Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972), reviewed the law as it relates to hearsay and the res gestae exception and concluded that the statements concerning the occurrence of an accident at work made by the decedent to his wife on returning home the day of the alleged accident were not competent evidence, stating:

Under these principles we are compelled to conclude that the statements made by the decedent concerning the accident to his wife were not within the res gestae exception. We do not view these as spontaneous utterances springing out of the act. Initially, we note that the words were not in 'the same continuous transaction' with the act of being struck over the head with the garage door. There was a distinct break in the continuity during which time the decedent had seen a number of other people to whom he did not mention anything about the accident. Moreover, during this time the requisite spontaneity vanished as the decedent's reflective faculties resumed functioning. Thus,

[ 35 Pa. Commw. Page 77]

    the statements were the result of consideration, and must be viewed as a narration or explanation of the past event. Consequently, we conclude that the statements to the wife were hearsay and not competent evidence to ...


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