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decided: November 5, 1981.


No. 80-1-168, Appeal from the Order of the Commonwealth Court at No. 791 C.D. 1979, affirming the Order of the Workmen's Compensation Appeal Board at No. A-75755.


Raymond G. Hasley, Rose, Schmidt, Dixon, Hasley, Whyte & Hardesty, Karl Alexander, Pittsburgh, for appellant.

Joseph F. Grochmal, Noble R. Zuschlag, Fried, Kane, Walters & Zuschlag, Pittsburgh, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., filed a concurring opinion in which Larsen, J., joined. O'Brien, C. J., filed a dissenting opinion.

Author: Nix

[ 496 Pa. Page 264]


Appellant John Bigley was an employee of Unity Auto Parts, Inc. On September 7, 1973, Bigley was a passenger in a vehicle belonging to Unity and operated by a co-worker when it became involved in an accident. As a result of the injuries sustained, Bigley is now a quadriplegic. At the time of the accident Bigley was 21 years of age and had just graduated from Penn State University. He was married and the couple had one child. Following the accident, American Hardware Mutual Insurance Company, the workmen's compensation carrier for Unity, filed an official form of notice to the Commonwealth reporting the injury and indicating that compensation would be paid to Bigley at the rate of $62.67 weekly. The payments were not accepted by Mr. Bigley. Instead, Bigley and his wife instituted a trespass action in the Court of Common Pleas of Westmoreland County.*fn1 They named as defendants Unity as well as Jeannette

[ 496 Pa. Page 265]

Auto Parts, Inc.,*fn2 Isadore Friedman*fn3 and Albert R. Larrabee.*fn4 Unity's liability insurance company was different from their workmen's compensation insurer.

On September 5, 1975, Bigley also filed a workmen's compensation claim petition alleging a work related injury on September 7, 1973.*fn5 That petition included a notice which stated: "This action is filed to protect my rights under the Workmen's Compensation Act within the statutory period allowed for filing claims."

In the suit in the trespass action, on August 7, 1975, the judge ruled that the injury did not occur while in the regular course of employment*fn6 and that the defense of workmen's compensation was not available to Unity.*fn7 Subsequently on March 5, 1976, the remaining parties (Bigley, Unity and Larrabee) entered into a settlement. By the terms of the settlement agreement, Bigley agreed to prosecute the claim for workmen's compensation and to use his best efforts in successfully concluding the matter. It was also agreed that the insurance companies of the defendants in the trespass action could be subrogated out of the award Bigley might receive under the Workmen's Compensation Act. § 319, 77 P.S. § 671.

[ 496 Pa. Page 266]

On March 5, 1976, pursuant to an oral motion made by the defendants in the trespass action, the court issued a decree vacating the original order of August 7, 1975 relating to Bigley's status at the time of the accident and further decreed that the issue of whether the injury was suffered during the regular course of employment was to be preserved for disposition by the appropriate workmen's compensation authority.

For reasons not explained on this record, the claim petition was withdrawn at appellant's counsel's request. The request was made on February 25, 1977. On February 28, 1977 Referee Kenney approved the request and permitted the withdrawal.*fn8 No appeal was taken from that order. Subsequently, new counsel for Bigley filed on his behalf on October 3, 1977 a petition to reinstate his workmen's compensation claim. Unity filed an answer alleging (a) that the claim was barred by the statute of limitations; (b) that the original petition had been withdrawn and no appeal taken and was therefore res judicata ; and (c) that the petition for reinstatement was untimely. The referee before whom the hearing on the petition for reinstatement was held dismissed the petition. This decision was upheld by the Workmen's Compensation Appeal Board and the Commonwealth Court, 49 Pa. Commw. 448, 411 A.2d 575. This Court granted review.

The Commonwealth Court was of the view that the instant appeal was controlled by that court's decision in Fox v. Workmen's Compensation Appeal Board, 33 Pa. Commw. 575, 382 A.2d 494 (1978). Mr. Fox filed a claim on July 19, 1971 seeking workmen's compensation benefits as a result of an injury allegedly suffered on October 29, 1970. On June 5, 1972 during the hearing before the referee, Mr. Fox agreed to withdraw his claim petition upon the promise of the employer to pay the medical bills incurred as a result of the

[ 496 Pa. Page 267]

    injury. On that date an order was entered permitting the withdrawal. Later Mr. Fox obtained counsel and appealed to the Workmen's Compensation Appeal Board seeking a reversal of the Referee's order permitting the withdrawal of the claim petition. He argued that he acted without the advice of counsel and contended he was under medication at the time which vitiated his capacity to intelligently decide to withdraw the claim. The Board decided against Mr. Fox and no further appeal of that ruling was taken.

Prior to the Board's affirmance of the referee's order approving the withdrawal, Mr. Fox filed a petition for modification of award advancing the same argument that he urged before the Board. A second hearing before a referee was held and thereafter the referee dismissed the petition. The referee's dismissal was affirmed by the Board.

In Fox the Commonwealth Court upheld the Board and the referee by concluding that Section 315 of the Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended 77 P.S. § 602 barred the requested ...

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