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PEGGY HIPPENSTEEL v. WORKMEN'S COMPENSATION APPEAL BOARD (H.M. KELLY TRUCKING COMPANY) (02/23/83)

decided: February 23, 1983.

PEGGY HIPPENSTEEL, GUARDIAN OF SHERRI L. KELLER, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (H.M. KELLY TRUCKING COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of PeggyHippensteel, Guardian of Sherri L. Keller v. Workmen's Compensation Appeal Board and H.M. Kelly Trucking Company, No. A-79773.

COUNSEL

Samuel K. Gates, with him Gary L. Snyder, Frankel & Gates, for petitioner.

Robert J. Stewart, with him Patricia A. Butler, Liverant, Senft and Cohen, for respondent, H.M. Kelly Trucking Company.

President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 72 Pa. Commw. Page 262]

Before this Court is an appeal by Peggy Hippensteel (Petitioner), in her capacity as natural guardian of Sherri L. Keller (Claimant), of a decision by the Workmen's Compensation Appeal Board (Board) affirming a referee's denial of death benefits to Claimant on the grounds that the petition therefore was untimely filed. We affirm.

Claimant, who was born on August 28, 1962, is the illegitimate daughter of the late Lester E. Walton and Petitioner. By court order, Walton was obligated to pay Petitioner the sum of $7.50 per week for the support of Claimant. Walton, who was a truck driver, was killed in a work related accident on April 9, 1965. His widow filed a claim petition for death benefits on behalf of herself and their two children for which payments were subsequently made. Petitioner, however, ostensibly on the basis of statements made by Walton's employer, the Kelly Trucking Co., to the effect that Claimant was not entitled to benefits, did not file a claim at that time. It was not until December 23, 1975, that a separate claim petition was filed on behalf of Claimant.

Following a hearing, a referee found, and the Board affirmed, that the claim, having been filed by Petitioner more than sixteen months after Walton's death,*fn1 was untimely and should be dismissed. In her appeal to this Court, Petitioner asserts that the Board's decision was in error as a matter of law in that: (1) Claimant, as an infant, was legally disabled so that the running of the statutory period for filing a

[ 72 Pa. Commw. Page 263]

    dependent death benefits petition should have been tolled, and (2) Claimant, as a minor, could not be bound by the actions of her mother (Petitioner) when the courts have "neglected" to appoint a guardian to protect her interest.

With respect to the first issue, we must reject Petitioner's argument. While we take note of the examples from other jurisdictions, cited by Petitioner, which toll the statute of limitations in workmen's compensation cases when a claimant is disabled because of infancy, it is the law in Pennsylvania that the limitation to a period in which an action can be brought is not tolled for minors or other incompetents unless the statute so provides. Walker v. Mummert, 394 Pa. 146, 146 A.2d 289 (1958). See also Walters v. Ditzler, 424 Pa. 445, 227 A.2d 833 (1967); Courts v. Campbell, 245 Pa. Superior Ct. 326, 369 A.2d 425 (1976). See generally 2 Standard Pennsylvania Practice 2d ยง 13:114. The Pennsylvania Workmen's Compensation Act (Act) does not except minors from the limited time period in which a claim must be brought. Accordingly, we have held that Section 315 of the Act barred the claim of minors brought after the statutory period had lapsed. Landis v. Zimmerman Motors, Inc., 29 Pa. Commonwealth Ct. 227, 370 A.2d 412 (1977); Sweeny v. Reading Co., 146 Pa. Superior Ct. 539, 23 A.2d 66 (1941).*fn2

In addressing the second issue raised herein, Petitioner contends that even though she, as natural guardian, could have pursued a claim for compensation on ...


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