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EARL FORMAN v. IRVING RUTBERG (12/31/87)

filed: December 31, 1987.

EARL FORMAN, DECEASED, ELIZABETH FORMAN, WIDOW
v.
IRVING RUTBERG, APPELLANT (TWO CASES)



Appeal from the order of October 6, 1986 in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1037, May Term, 1986. Appeal from the order of October 6, 1986 in the Court of Common Pleas, Civil Division, of Philadelphia County, No. 1036, May Term, 1986.

COUNSEL

Arnold F. Laikin, Philadelphia, for appellant.

Mark B. Segal, Philadelphia, for appellees.

Rowley, Kelly and Watkins, JJ.

Author: Rowley

[ 369 Pa. Super. Page 639]

This case involves appeals from two orders refusing to strike two judgments. In April, 1985, Appellee, Elizabeth Forman, filed a workmen's compensation fatal claim petition against appellant, Irving Rutberg, following her husband, Earl Forman's, fatal fall from a drain pipe while repairing appellant's rental property. In this claim she sought dependent's death benefits. In August, 1985, as executrix of Earl Forman's estate, appellee filed a lifetime claim petition against appellant seeking medical benefits. In January, 1986, appellant received notice of the Referee's Order that appellant's insurance company did not represent appellant individually, but only with regard to his fur business, and therefore, the insurance company's answers to the fatal claim and life time petitions were to be stricken. However, appellant, individually was granted leave to file an answer. On May 8, 1986, appellant still having filed no answer and appellee having received a notice from the Pennsylvania Compensation Rating Bureau that appellant was not carrying workmen's compensation insurance when Earl Forman fell and died, appellee filed two praecipes with the Prothonotary of the Court of Common Pleas of Philadelphia County to enter temporary judgments against appellant pursuant to 77 P.S. § 931.*fn1 The judgments were entered on May 8, 1986. On May 14, 1986 appellant filed answers to the petitions claiming that he was not an employer subject to the Workmen's Compensation Act. On August 21, 1986, appellant filed a petition to strike or open the judgments,*fn2 and to grant him counsel fees. The court entered an order with regard to each of the judgments

[ 369 Pa. Super. Page 640]

    refusing to strike the judgments and denying the claim for counsel fees. Appellant has appealed from these orders, and the appeals have been consolidated.

Appellant contends that the trial court erred when it refused to strike the judgment because the statute authorizing entry of the judgment is unconstitutional on its face. Appellant asserts that 77 P.S. § 931 authorizing the temporary judgments to be entered against him, is a deprivation of his property without procedural or substantive due process of law in violation of both the state and federal constitutions. By placing a lien on the employer's property, thereby affecting its alienability, the statute restricts the employer's use of his property without due process. Similarly, because there is no provision in the statute for notice and a hearing prior to the entry of the judgment to ascertain the potential liability of the employer, the statute denies the employer procedural due process. Finally, appellant argues that appellee acted arbitrarily, vexatiously, and in bad faith when she filed the praecipes for the judgments, and therefore the trial court should have granted that portion of his petition which requested counsel fees.

The relevant portion of the statute allowing an employee to praecipe for a temporary judgment against an employer under certain circumstances, provides as follows:

Whenever, after an injury, any employe or his dependents shall have entered into a compensation agreement with an employer, who has not accepted or complied with the provisions of section three hundred five, or shall file a claim petition against such employer, he may file a certified copy thereof with the prothonotary of the court of common pleas of any county. The prothonotary shall enter the amount stipulated in any such agreement or claimed in any such claim petition as judgment against the employer, and where the amount so stipulated or claimed is for total and permanent disability, such judgment shall be in the sum of thirty thousand dollars. If the agreement be approved by the department, or compensation awarded as claimed in the petition, the amount

[ 369 Pa. Super. Page 641]

    of compensation stipulated in the agreement or claimed in the petition shall be a lien, as of the date when the agreement or petition was filed with the prothonotary. Pending the approval of the agreement or the award of compensation, no other lien which may be attached to the employer's property during such time shall gain priority over the lien of such agreement or award; but no execution shall issue on any ...


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