Pinzhoffer v. Franzen

• Decision Date: 06 January 1943
• Docket Number: 5988
• Citation: 46 Pa. D. & C. 234
• Parties: Pinzhoffer v. Franzen et al
• Court: Pennsylvania Commonwealth Court

46 Pa. D. & C. 234

Pinzhoffer v. Franzen et al

No. 5988

Common Pleas Court of Philadelphia County, Pennsylvania

January 6, 1943

June term, 1940.

Glenn A. Troutman for Alexander F Barbieri, for plaintiff.

Robert C. Duffy and Henry Thomas Dolan, for defendants.

OPINION

Appeal from Workmen's Compensation Board.

MILNER J.

This is an appeal by claimant from a decision of the Workmen's Compensation Board after a further hearing held in pursuance of an order of this court, dated January 14, 1941, remitting the record in this case to the Workmen's Compensation Board for the purpose of taking further testimony and making further findings thereon.

Claimant is the widow of Joseph L. Pinzhoffer, who was killed as a result of an industrial accident occurring October 27, 1938. The facts concerning the accident are not at issue. An award was made by the Workmen's Compensation Board against the employer, John Franzen, and the appeal has been taken, not from that award, but from the failure of the Workmen's Compensation Board to enter the award against defendant insurance carrier, Pennsylvania Threshermens & Farmers Mutual Casualty Insurance Company, as well as the defendant employer. Claimant maintains that the award should also be made against the insurance carrier because it had issued a policy of compensation insurance to the employer defendant. The insurance carrier denies any liability on the ground that it had given a cancellation notice of termination of its compensation policy which was effective October 25, 1938, a period of two days before the occurrence of the accident.

In its original opinion filed August 9, 1940, the Workmen's Compensation Board affirmed the finding of fact of the referee who heard the case, that at the time of the aforesaid accident, October 27, 1938, there was no workmen's compensation insurance policy in effect covering defendant's business. In this opinion the board said:

" On October 14, 1938, the insurance company advised the defendant that it was cancelling his insurance as of October 24, 1938, by reason of nonpayment of premium. Upon receipt of said notice the defendant proceeded to take out insurance with another company, to take effect on October 29, 1938. Unfortunately, on October 27, 1938, the decedent sustained his injuries, resulting in his death.

" The defendant admitted that he had received notice of the said cancellation October 15, 1938, and thereupon he procured new insurance. He further testified that the company made demand for an additional premium of $ 54.60, which he did not pay; that he was willing to make payment of said premium providing that the said payment was split up into two monthly payments; that upon his failure to make payment, he received notice of the cancellation.

" The policy in issue, in reference to cancellation, provided as follows:

" 'This policy may be cancelled at any time by either of the parties upon written notice to the other party stating when, not less than ten days thereafter, cancellation shall be effective. The effective date of such cancellation shall then be the end of the policy period.'

" It is obvious from a study of the record that notice of cancellation was given to the defendant as required by the terms of the policy; and that the policy ceased to be in existence upon the expiration of ten days from October 15, 1938. Unfortunately, the injuries sustained by claimant's husband were the result of an accident occurring October 27, 1938, which date was subsequent to the expiration date of the policy. This being the case, there is no liability on the part of the insurance carrier."

From this decision an appeal was taken to this court. On January 19, 1941, this court remitted the record in this case to the Workmen's Compensation Board " for the taking of further testimony and for the making of further findings thereon, relating more specifically to the circumstances concerning the actions of the insurance carrier and the employer with regard to the attempted cancellation of Workmen's Compensation Insurance Policy" . Accordingly, a hearing was had before a referee of the Workmen's Compensation Board and additional testimony taken, and additional findings of fact made. The referee ordered his original award republished. Claimant appealed to the board from the findings and order of the referee, which was treated by the board as exceptions to the findings of the referee, and as exceptions were dismissed. The board affirmed the findings of fact of the referee and made additional findings of fact, and ordered the record remanded to this court for further disposition on the original appeal.

The facts found by the Workmen's Compensation Board may be summarized as follows: The accident occurred on October 27, 1938. Claimant's decedent died October 28, 1938. The employer defendant had a policy for workmen's compensation insurance with the insurance carrier defendant, issued November 29, 1937, the date of expiration of which was November 30, 1938. On October 14, 1938, a cancellation notice was sent by the insurance carrier to the employer defendant by registered mail, notifying him that the policy was canceled as of October 24, 1938. This notice was received by the employer defendant as shown by the receipt therefor, entered as defendant's exhibit D-1. (This receipt shows that notice was received October 15, 1938.) The notice of the cancellation was mailed to the compensation rating bureau in accordance with the terms of the policy, and at least ten days' notice was given by the insurance carrier to the defendant employer notifying him of the cancellation of the said policy in accordance with the terms of the said policy of insurance. A demand for additional premium was made by the insurance carrier on the defendant employer by reason of an increase in rates for compensation insurance published by the rating bureau to cover the increased risk of the compensation act which became effective January 1, 1938. An audit was made of the books and records of the defendant employer by the auditor of the insurance carrier, which substantiated the insurance carrier's demand for the additional premium which audit was certified to as correct by the employer defendant. After the notice of cancellation was received the defendant employer secured a new policy covering workmen's compensation insurance with the Lumbermen's Mutual Casualty Company of New York, effective October 29, 1938.

It is well settled that the duty of a court upon an appeal from the decision of the compensation authorities under the Workmen's Compensation Act is not to weigh the evidence in order to determine the facts, but to examine the record to determine whether there is competent evidence to support the conclusions of the referee and the compensation board: Hill v. Thomas S. Gassner Co. et al., 124 Pa.Super 217; Paulin v. Williams & Co., Inc., et al., 122 Pa.Super 462; Ferrante v. Ferrante et al., 123 Pa.Super 74. We have carefully read the testimony and examined the record in this case, and are of the opinion that the findings of fact found by the referee and the Workmen's Compensation Board are amply supported by legally competent and sufficient evidence.

The only question before us is whether the Workmen's Compensation Board erred in making the award in this case only against the employer defendant. We are of the opinion that it did not err and that its award was proper under the facts and the law in this case.

The notice of cancellation became effective ten days after its receipt by the...