Virtue v. J. Lee Plummer, Inc.

• Decision Date: 01 February 1934
• Docket Number: 117-1934
• Citation: Virtue v. J. Lee Plummer, Inc., 111 Pa. Super. 476, 170 A. 443 (Pa. Super. Ct. 1934)
• Parties: Virtue v. J. Lee Plummer, Inc. et al., Appellants
• Court: Pennsylvania Superior Court

170 A. 443

111 Pa.Super. 476

Virtue v. J. Lee Plummer, Inc. et al., Appellants

No. 117-1934

Superior Court of Pennsylvania

February 1, 1934

Argued October 12, 1933

Appeal by J. Lee Plummer, Inc., from judgment of C. P., Allegheny County, July T., 1933, No. 554, in the case of Robert E Virtue v. J. Lee Plummer, Inc., and Southern Surety Company.

Appeal for award of compensation by Workmen's Compensation Board.Before Moore, J.

The facts are stated in the opinion of the Superior Court.

The court dismissed the appeal and entered judgment for the claimant.J. Lee Plummer, Inc., appealed.

Error assigned, among others, was the entry of the judgment.

Affirmed.

H. E McCamey of Dickie, Robinson & McCamey, and with him William W. Watson, for appellant.

Harry J. Nesbit, for appellee.

Before Trexler, P. J., Keller, Cunningham, Baldrige, Stadtfeld, Parker and James, JJ.

OPINION

Parker, J.

This is a workmen's compensation case.The referee, board, and court found for the claimant, and the employer, J. Lee Plummer, Inc., has appealed to this court from the judgment of the court of common pleas.By a stipulation filed after the appeal was taken, the parties have agreed that Robert E. Virtue"suffered an accident while in the course of his employment with J. Lee Plummer, Inc., resulting in the industrial loss of a leg and no further disability."The appellant, however, contends that since this proceeding was not begun within one year after the accident, it was too late and the judgment cannot be sustained.

The claimant having been injured on April 27, 1930, promptly advised the employer, who, in turn, on May 13, 1930, notified his insurance carrier, Southern Surety Company, and that corporation on June 13, 1930, entered into an agreement with the claimant providing for the payment of compensation for total disability.Payments were made to the claimant under the agreement until November, 1931, when the insurance company ceased to pay.On May 26, 1932, a petition, designated a petition for review, was filed by claimant, setting forth the fact that the Southern Surety Company was in the hands of a receiver and no payments were being made to the claimant.The employer was brought upon the record and made answer denying liability.Subsequently, the employer presented two petitions to the compensation authorities asking that the agreement entered into between the insurance company and the claimant be set aside on the ground that the employer was not bound by anything done by the insurance carrier and the claim was barred by the statute of limitations.

We will first address our attention to the procedure employed.It has many times been pointed out by the Supreme Court and this court that a proceeding under the Workmen's Compensation Act is not "litigation," and that established rules and principles of common law practice are not to be rigorously applied: Gairt v. Curry Coal Min. Co.,272 Pa. 494, 498, 116 A. 382;Manley v. Lycoming Motors Corp.,83 Pa.Super. 173;Ratto v. Penna. Coal Co.,102 Pa.Super. 242, 247, 156 A. 749.The courts take a liberal attitude toward pleadings in a compensation case and may consider a petition to reinstate as a petition to modify, etc.: Higgins v. Com. C. & C. Co., 106 Pa.Super. 1, 161 A. 745.The employee and the insurance carrier had entered into an open agreement which, after November, 1931, the insurance company was unable to carry out.The employee then sought satisfaction from his employer, but the employer denied liability and they were unable to agree upon the facts or the compensation due.Under such circumstances, the employee was authorized to present a claim for compensation to the board (§ 410 of the Workmen's Compensation Act of June 2, 1915, P. L. 736;77 PS 1).A petition, described in its caption as a petition for review, having been presented by the employee, the employer appeared, made answer, and presented counter petitions in which it denied liability on the merits and for the additional reason that the claimant's petition was presented too late.The three petitions were heard together and, in fact, treated, and properly so, as an original claim as between employer and employee, and affirmative proofs and defense were made bearing on the merits of the claim for compensation.While there is some confusion in the discussion by the board as to the sections under which relief was granted, nevertheless the proceeding was conducted as if it was an original claim petition as against the employer.The findings, which were supported by competent evidence, were just such as would have been made on such an original petition and at the time supported the award made.In fact, the board in its final order suggested that the award might be sustained as an original petition.We will so treat the proceedings.

The principal contention of the appellant is that the proceeding was instituted too late....