Mackanitz v. Pittsburgh & West Virginia Railway Co.

• Decision Date: 19 July 1945
• Citation: 157 Pa.Super. 359,43 A.2d 586
• Parties: Mackanitz, Appellant, v. Pittsburgh & West Virginia Railway Co
• Court: Pennsylvania Superior Court

43 A.2d 586

157 Pa.Super. 359

Mackanitz, Appellant, v. Pittsburgh & West Virginia Railway Co

Superior Court of Pennsylvania

July 19, 1945

Argued April 11, 1945.

Appeal, No. 171, April T., 1945, from order of C. C Allegheny Co., 1944, No. A-259, in case of Barbara Mackanitz v. The Pittsburgh & West Virginia Railway Company.

Appeal by claimant from decision of Workmen's Compensation Board refusing award.

Appeal dismissed, before McKim, P. J., Harkins and Gunther, JJ. opinion by Harkins, J. Claimant appealed.

Francis Taptich, for appellant.

Ira R. Hill, with him Reed, Smith, Shaw & McClay, for appellee.

Baldrige P. J., Rhodes, Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

RENO, J.

In this workmen's compensation case appellant, the widow of a deceased employe of defendant, filed a claim petition for compensation for the death of her husband, alleged to have been the result of an accident sustained by him in the course of his employment as a freight-car repairman. Defendant, in its answer, averred that there was no causal connection between the accidental injury and the subsequent death, and raised the defense that the claim had been presented too late, denying the allegations of the petition that the delay had been occasioned by representations of its agents which had lulled claimant into inaction. By stipulation of counsel it was agreed to try the latter issue preliminarily, and claimant has appealed from an order of the court below dismissing her appeal from the decisions of the referee and the board holding that it had not been proved that defendant was responsible for the failure of the claimant to file her petition within the statutory period of limitation contained in the following portion of § 315 of the Workmen's Compensation Act of June 2, 1915, P. L. 736, as amended by Act of June 21, 1939, P. L. 520, § 1, 77 PS § 602: ". . . In cases of death all claims for compensation shall be forever barred, . . . unless, within one year after the death, one of the parties shall have filed a petition as provided in article four hereof. . . ."

There is no dispute that decedent, Joseph Mackanitz, was injured on April 2, 1942, while carrying a piece of structural steel in defendant's yards, and that he died on August 16, 1942, following an operation. Defendant paid decedent compensation under an open agreement until July 2, 1942, when further payments were discontinued because defendant believed the disability then existing to be the product of a brain tumor rather than the accidental injury, a position which defendant has also taken with respect to Mackanitz' death. The present claim petition was filed August 27, 1943, and the widow attempted to excuse the delay of eleven days longer than the permissible year by showing a course of conduct on the part of defendant's agents which she contended induced her to postpone unduly the institution of proceedings for the adjudication of her claim.

Claimant, who was the only witness on behalf of her petition, testified that two weeks after decedent's death A. B. Cressler, superintendent of shops and purchasing agent for defendant, who had been decedent's supervisor, came to her home to deliver a railroad ticket to Detroit which she had requested and told her not to worry or to start suit for compensation, as the case would be settled with her and there would be no trouble. About a month later, claimant said, an adjuster for the Workmen's Compensation Bureau called upon her and told her that Thomas J. Cavanaugh, defendant's adjuster in charge of compensation, had said that defendant did not propose to compensate her, and that she should see an attorney and take her case before the referee. She next discussed the matter with defendant's agents on March 1, 1943, when she saw Cressler in his office and told him that she wanted compensation, to which he replied, according to claimant, that he would see what he could do. As nothing was done, claimant testified she returned to Cressler's office six weeks later and was advised that, because her husband had been with the company so long, she would receive $ 1000 which, on the following day, she said she would take, but that she would like to have more. The next week, according to claimant, Cressler came to her home with a check for $ 1200, but when she refused to execute a release because the sum was not large enough, she testified Cressler again advised her not to do anything and he would see what he could do. Following that interview, she had no further contact with company officials, and she denied talking with Cavanaugh at any time after her husband's death. The widow also testified that she had received a letter dated July 22, 1943, from a son in the armed service telling her that a lawyer in his unit had advised not to wait too long to file a claim petition, as she only had two years from the date of death to do so. Claimant further said that she had been told by an employe of the Pittsburgh Post Office, from whom many persons sought advice, that she should not hurry to start proceedings against defendant, as she had two years in which that might be done. Claimant vacillated in her testimony as to whether she had delayed her petition in reliance upon Cressler's statements or upon the advice contained in the letter from her son.

Thomas J. Cavanaugh testified for defendant that in August, 1942, shortly after decedent's death, he interviewed claimant in his office and told her that as a result of the reports concerning decedent's condition which the company had received from its doctors no compensation would be paid for the death, and that if claimant wanted to do anything further she should visit the Pittsburgh office of the Department of Labor and Industry, the address of which he gave her. This witness was partially corroborated by two other employes of defendant who testified they had seen claimant in Cavanaugh's office at about the time he said the conversation occurred.

A. B Cressler, called by defendant, testified he had no recollection of having said anything relative to compensation when he went to claimant's home to take her the railroad ticket shortly after decedent died. The witness said that upon the occasion of the widow's first visit to his office he told her that the company disclaimed liability but that he would see if a voluntary payment could be arranged. When claimant returned four or six...