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PAUL TULAY v. GENERAL FOAM CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY (01/31/79)

decided: January 31, 1979.

PAUL TULAY, CLAIMANT
v.
GENERAL FOAM CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, AND COMMONWEALTH OF PENNSYLVANIA AND WORKMEN'S COMPENSATION APPEAL BOARD. GENERAL FOAM CORPORATION AND PENNSYLVANIA MANUFACTURERS' ASSOCIATION INSURANCE COMPANY, APPELLANTS



Appeal from the Orders of the Court of Common Pleas of Luzerne County in case of Paul Tulay v. General Foam Corporation and Pennsylvania Manufacturers' Association Insurance Company and Commonwealth of Pennsylvania and Workmen's Compensation Appeal Board, Nos. 2813 of 1973 and 9644 of 1975.

COUNSEL

Anthony J. Ciotola, with him Louis G. Feldman, and Feldman and Ciotola, for appellants.

Joseph R. Ferdinand, with him Robert J. Gillespie, Jr., and James N. Diefenderfer, for appellees.

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

Author: Craig

[ 40 Pa. Commw. Page 230]

This is an appeal by General Foam Corporation and Pennsylvania Manufacturers' Association Insurance

[ 40 Pa. Commw. Page 231]

Company (employer) from an order of the Court of Common Pleas of Luzerne County (lower court), wherein the lower court both affirmed the order of the Workmen's Compensation Appeal Board (Board) granting a rehearing for Paul Tulay (claimant), and granted claimant's petition to file exceptions nunc pro tunc to a previous order of the Board disallowing his claim. We reverse.

Claimant ceased employment with employer on February 16, 1965. On November 16, 1965, claimant filed a petition under The Pennsylvania Occupational Disease Act (Act)*fn1 alleging total disability as of February 16, 1965. A series of eight hearings were held on the claim between 1969 and 1972, and on August 2, 1972 the Workmen's Compensation referee awarded claimant compensation. Employer appealed the award to the Board, and on March 1, 1973 the Board reversed the referee and dismissed the claim.

On March 20, 1973, claimant took an appeal to this court, which, by order of April 27, 1973, transferred the appeal to the Court of Common Pleas of Luzerne County, the court having jurisdiction under this case by virtue of Section 427 of the Act, 77 P.S. ยง 1527. In the order, President Judge Bowman stated that the appeal would be treated as if originally filed in the Court of Common Pleas on March 20, 1973.

Section 427 of the Act requires that claimant file exceptions to the actions of the Board at the time of taking the appeal or within thirty days thereafter. Claimant failed to do so. Nothing further was done on this case until September 26, 1974, when claimant filed with the Court of Common Pleas of Luzerne County a petition to file exceptions nunc pro tunc and a rule to show cause why those exceptions should not be filed,

[ 40 Pa. Commw. Page 232]

    amending his petition on October 10, 1974 by appending his proposed exceptions.

Also, on September 30, 1974, claimant filed with the Board a petition for rehearing, which the Board granted by ...


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