Bretsky v. Lehigh Valley RR Co.
Decision Date | 15 July 1946 |
Docket Number | No. 306,Docket 19790.,306 |
Citation | 156 F.2d 594 |
Parties | BRETSKY v. LEHIGH VALLEY R. R. CO. |
Court | U.S. Court of Appeals — Second Circuit |
Alexander & Green, of New York City (Herbert S. Ogden, of New York City, of counsel), for appellant.
Stephen A. Machcinski, of New York City (Herbert Zelenko and Harold L. Schwartz, both of New York City, of counsel), for appellee.
Before CHASE, CLARK, and FRANK, Circuit Judges.
The sole question presented on this appeal is whether a certain decision and award of the Pennsylvania Workmen's Compensation Board is res adjudicata.
The plaintiff, a tinsmith employed by the defendant railroad in the latter's locomotive repair shops at Ashmore, Pennsylvania, on November 19, 1940, was injured while repairing a dismantled locomotive. Subsequently, the plaintiff and the defendant entered into an agreement for disability compensation under and in conformity with the provisions of the Pennsylvania Workmen's Compensation Act. Public Law 338, June 2, 1915, as amended by Public Law 281, June 21, 1939, 77 P.S. § 1 et seq. Under this agreement the defendant paid to the plaintiff an agreed weekly sum until September 19, 1941, when, alleging that the plaintiff's disability had decreased by that time and later ceased, the defendant filed a petition with the Board to modify and terminate the agreement. On notice being duly sent by the Pennsylvania Department of Labor and Industry to the plaintiff and to the defendant and being duly received by each of them, the petition came on for hearing before a referee. In the meantime the plaintiff had instituted this suit to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, alleging that he was engaged in interstate commerce at the time of his injury; and, at the hearing before the Pennsylvania referee, the plaintiff refused to participate therein, stating:
The referee made no express finding on his jurisdiction, stating further, in reply to a request for a postponement, only that:
An award was duly entered on the referee's decision and the parties notified thereof. No appeal was taken and the time to appeal expired. The defendant's check for the amount of the award was delivered to the plaintiff but the plaintiff returned it, refusing to accept on the ground that his claim was...
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