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YELLOW FREIGHT SYSTEM v. COMMONWEALTH PENNSYLVANIA (01/05/81)

decided: January 5, 1981.

YELLOW FREIGHT SYSTEM, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JANICE C. MADARA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Janice C. Madara, widow of Francis C., deceased v. Yellow Freight Systems, Inc., No. A-75520.

COUNSEL

Christopher S. Underhill, Hartman, Underhill & Brubaker, for petitioner.

Richard F. Boyer, for respondent, Janice C. Madara.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 56 Pa. Commw. Page 2]

This is an appeal by employer Yellow Freight System, Inc. (Yellow) from an order of the Workmen's Compensation Appeal Board (Board) affirming a fatal claim award to Janice C. Madara (claimant). The claimant is the widow of Francis C. Madara, Jr., who was killed on October 2, 1976, when the tractor-trailer he was driving for Yellow veered off the highway, rolled down an embankment and overturned.

The threshold question in this case is one of law: whether the untimeliness of the answer to the claim petition barred the employer from introducing evidence of an "affirmative" defense to the claim.

[ 56 Pa. Commw. Page 3]

The claimant filed a petition on February 10, 1977. For some reason the petition was re-filed on February 16; and service was made on the employer on February 23, 1977. No answer was filed until March 29, 1977, when the employer submitted an answer to the referee at the hearing scheduled for that date. That was 34 days after service of the petition, and hence 19 days in excess of the 15 days permitted for the filing of an answer by Section 416 of the Pennsylvania Workmen's Compensation Act.*fn1

The employer's submitted answer raised the defense that the decedent at the time of his death was "acting in violation of law" and that compensation was not payable, by force of Section 301(a) of the Act.*fn2 Under that Section the right to compensation is defeated if the employer meets the burden of proving that the injury or death was caused by the employee's violation of law.

Counsel for the claimant objected to the filing of the answer on the ground that it was not timely filed under Section 416. Relying on that same Section claimant's counsel moved that all the allegations in the claim petition be deemed admitted for lack of a timely answer. The referee terminated the March 29 hearing by deciding to hold the claimant's objection and motion under advisement for a deferred ruling.

Although claimant's counsel did not state the extent of his objection in clear terms, it was clearly an objection based on ...


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