Travelers Ins. Co. v. Branham

• Decision Date: 09 July 1945
• Docket Number: Civil Action No. 4333.
• Citation: 65 F. Supp. 512
• Parties: TRAVELERS INS. CO. v. BRANHAM, Deputy Com'r, et al.
• Court: U.S. District Court — Western District of Pennsylvania

65 F. Supp. 512

TRAVELERS INS. CO. v. BRANHAM, Deputy Com'r, et al.

Civil Action No. 4333.

District Court, E. D. Pennsylvania.

July 9, 1945.

Benjamin O. Frick and Evans, Bayard & Frick, all of Philadelphia, Pa., for plaintiff.

Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., and Charles R. Sheidy, Jr., Asst. U. S. Atty., of Reading, Pa., for Charles T. Branham.

Freedman, Landy & Lorry, of Philadelphia, Pa., for Pauline Bernatowicz.

KIRKPATRICK, District Judge.

By virtue of an order dated August 8, 1941, John Bernatowicz was, on April 20, 1942, receiving $25 per week compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. On the latter date the Deputy Commissioner entered an order terminating his compensation. On March 3, 1943, the District Court, by Judge Bard, on a motion for summary judgment, entered the following order:

"That defendant Deputy Commissioner Norton's compensation order and award of April 20, 1942, is hereby suspended and set aside and its enforcement is hereby permanently enjoined;

"That defendant Deputy Commissioner Norton's compensation order and award of August 8, 1941, is hereby reinstated and full compliance therewith, from the date of suspension and cessation of compensation, is hereby directed;"

An appeal was taken from Judge Bard's order on March 31, 1943, and on April 8 a supersedeas bond was filed together with the following order by Judge Bard:

"The foregoing bond is hereby approved and is to stand as a supersedeas until the final termination of the appeal."

On May 1, 1944 the Circuit Court of Appeals affirmed Judge Bard's judgment. Bernatowicz v. Nacirema Operating Co., 3 Cir., 142 F.2d 385. Bernatowicz had died on January 15, 1944.

No compensation was paid to the claimant or his representative after March 3, 1943, during the pendency of the appeal.

After the decision of the Circuit Court of Appeals the Deputy Commissioner ordered the plaintiff to pay Bernatowicz's administrator $485, being the 20 per cent penalty, provided for by Section 14(f) of the Act, 33 U.S.C.A. § 914(f), upon compensation payable under the terms of an award but not paid within 10 days after it becomes due. This proceeding is for review of that order.

By its affirmance of the judgment of March 3, 1943, of this Court the Circuit Court of Appeals determined that there had been no error in entering that judgment and that it was valid in all respects. That ruling became the law of the case for all subsequent proceedings in it. "It has been settled by the decisions of this court, that after a case has been brought here and decided, and a mandate issued to the court below, if a second writ of error is sued out, it brings up for revision nothing but the proceedings subsequent to the mandate. None of the questions which were before the court on the first writ of error can be reheard or examined upon the second." Roberts v. Cooper, 20 How. 467, 481, 15 L.Ed. 969.

In the opinion 142 F.2d 386, the Circuit Court of Appeals referred to Judge Bard's order as "an order * * * reinstating the order...