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ROCKWOOD INSURANCE COMPANY v. COMMONWEALTH PENNSYLVANIA (08/15/79)

decided: August 15, 1979.

ROCKWOOD INSURANCE COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND FRANK CICIONI TRUCKING CO. ET AL., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Paul Frederick Shistle v. Frank Cicioni Trucking Co., No. A-71145.

COUNSEL

Charles W. Elliott, with him John P. Thomas, and Thomas and Hair, for petitioner.

Leonard G. Schumack, with him Wilbur H. Rubright, for respondents.

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

Author: Craig

[ 45 Pa. Commw. Page 110]

The petitioner in this case is the former compensation carrier of the Frank Cicioni Trucking Company (Cicioni).

After an employee of Cicioni filed a claim petition, the insurer, Rockwood, presented evidence before a referee intended to show that it had cancelled its compensation policy with Cicioni before the date of the injury to the employee.

The insurer presented two issues to the referee. First, it alleged that Cicioni had not specifically paid the premium due on its workmen's compensation policy, but merely made a payment on a running account it maintained through its insurance broker, Insurance Managers and Brokers, Inc. Secondly, it alleged that regardless of the outcome of that factual dispute, it could, upon ten days' written notice to the insured, cancel the policy anyway under a plenary power of cancellation reserved to itself in the policy agreement.

The insurer then presented evidence seeking to establish that it properly complied with the notice of cancellation requirement in the policy and that even if Cicioni had paid the premium on the workmen's compensation policy, Cicioni still owed premiums on other policies with Rockwood, which was the reason for exercising its power of cancellation.

The referee made the following findings of fact on these issues:

4. The defendant, Frank Cicioni Trucking Company, paid in full for the said policy [covering workmen's compensation] from 4/29/72 to 4/29/73, and evidence of payment was shown by cancelled check No. 7985 and also the statement

[ 45 Pa. Commw. Page 111]

    of Insurance Managers and Brokers, Inc., the general broker for ...


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