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JOANN ROSIPAL v. MONTGOMERY WARD (02/12/87)

filed: February 12, 1987.

JOANN ROSIPAL, AN INDIVIDUAL, APPELLEE,
v.
MONTGOMERY WARD, A CORPORATION, APPELLANT



Appeal From Order Entered October 21, 1985, Court of Common Pleas, Civil Division Allegheny County, No. G.D. 85-6864.

COUNSEL

Louis C. Long, Pittsburgh, for appellant.

Kenneth A. Roos, Philadelphia, for appellee.

Cavanaugh, Wieand and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Cavanaugh

[ 360 Pa. Super. Page 571]

In this case, the appellee, Joann Rosipal, was allegedly injured on the job while an employee of the appellant, Montgomery Ward. The appellant filed a notice of compensation payable and initiated wage indemnity payments. Subsequently, the appellant filed a petition for termination of compensation under the Workmen's Compensation Act. The petition was supported by a physician's affidavit of recovery. Following several hearings before a workmen's

[ 360 Pa. Super. Page 572]

    compensation referee, the referee held that the appellee had sustained a work related injury and her compensation benefits were reinstated.

The appellee then commenced a civil action in Allegheny County alleging economic duress, intentional infliction of emotional distress, procuring a "false, fraudulent and perjured affidavit" and breach of compensation agreement. The appellant filed preliminary objections in the nature of a demurrer which were dismissed by the court below. The court refused to certify the interlocutory order to this court. On March 14, 1986, this Court granted the appellant's petition for review which permits us to consider the merits of the underlying appeal. Toll v. Toll, 293 Pa. Super. 549, 439 A.2d 712 (1981).

The Pennsylvania Workermens' Compensation Act, 77 Pa.C.S. § 481, provides that the "liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees . . ." The Act further provides in § 511 that payment of compensation is not required after disability shall cease. It is further provided in § 772:

A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.

The appellant complied with the statute in petitioning to have the compensation terminated. If there were a defense to the petition to terminate, the appellee had the opportunity to raise it in the ...


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