Yeager v. United Natural Gas Co.

• Decision Date: 14 December 1961
• Parties: John A. YEAGER v. UNITED NATURAL GAS COMPANY, Appellant. John A. YEAGER v. UNITED NATURAL GAS COMPANY, Appellee.
• Court: Pennsylvania Superior Court

Page 455

176 A.2d 455

197 Pa.Super. 25

John A. YEAGER v. UNITED NATURAL GAS COMPANY, Appellant.

John A. YEAGER v. UNITED NATURAL GAS COMPANY, Appellee.

Superior Court of Pennsylvania.

Dec. 14, 1961.

Rehearing Denied in No. 147, Jan. 11, 1962.

Fruit & Francis, W. Allen Dill, Sharon, for United Natural Gas co.

Marks & Marks, B. H. Marks, and Marc Lincoln Marks, Farrell, for John A. Yeager.

Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

WOODSIDE, Judge.

The only question involved in this appeal is whether the claimant in a workman's compensation case filed an appeal to the board from a decision of the referee within the time allowed by statute. The board quashed the appeal on the ground it was filed too late, but the court below held that the board erred in doing so and directed the board to pass upon the case on its merits. The employer appealed to this Court. There is also an appeal by the claimant which must be considered.

The claimant suffered a back injury while in the course of his employment in 1955. When the case was before the referee the only question was the extent of the disability. The claimant offered the opinion of an osteopathic physician that he was totally disabled, and the employer offered the opinion of an orthopedic specialist that the claimant was only partially disabled. After the referee decided that the claimant was entitled to an award for total disability and the employer appealed, the board returned the case to the referee for the purpose of appointing impartial physicians and receiving their testimony. Upon receiving the additional evidence, the referee decided that the claimant was entitled to only partial disability and entered an award accordingly.

A copy of the referee's award was sent to counsel for the claimant on December 4, 1958. The claimant filed an appeal January 15, 1959. Under § 423 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 853, an appeal from the referee to the board must be taken by a party '* * * within twenty days after notice of a referee's award or disallowance of compensation shall have been served upon him.' The section authorizes the board, for cause shown, to extend the time for taking such appeal.

The employer moved to quash the appeal. The claimant answered as follows: 'The Award by the Commonwealth of Pennsylvania, Department of Labor and Industry, Workmen's Compensation Board, was sent out on December 4th, 1958. The notification of this Award was sent to Claimant's counsel at their address on Broadway, Farrell, Pennsylvania. At the same time, Claimant's copy was sent also to the Claimant's attorneys for the reason that the Board was not presently aware of the Claimant's proper address, and arrangements had been made with the local Reference's office to have the Claimant's notification sent to his counsel's office. When said notification arrived, the Claimant's attorneys tried to notify him by mail, but were unable to contact him until after the twenty-day period was up for the filing of the Appeal. Because the Claimant was not able to be notified before the twenty-day period was up, he was then forced to file his Appeal after the twenty-day period.'

Where an Act of Assembly fixes the time within which an appeal may be taken, courts have no power to extend it, or to allow an appeal nunc pro tunc, except when there is a showing of fraud or its equivalent. Something more than mere hardship is necessary to justify an extension of time. Wise v. Borough of Cambridge Springs, 262 Pa. 139, 142, 143, 104 A. 863 (1918); Marshall Unemployment Compensation Case, 177 Pa.Super. 259, 261, 111 A.2d 165 (1955); Turner Unemployment Compensation Case, 163 Pa.Super. 168, 171, 60 A.2d 583 (1948); Walatka v. Levin, 100 Pa.Super. 489, 492, 493 (1930); Devlin v. Grabler Mfg. Corp., 151 Pa.Super. 216, 219, 30 A.2d 138 (1943). The time of appeal cannot be enlarged in the absence of fraud, deception, coercion, or duress. Powell v. Sonntag, 159 Pa.Super. 354, 356, 48 A.2d 62 (1946).

Accepting everything set forth in the answer of the claimant to be true, there are no facts in this case which permit a court to direct the board to accept an appeal nunc pro tunc. The claimant himself sets forth that notice was sent to his counsel December 4, 1958; that 'arrangements had been made with the local Referee's office to have the Claimant's notification sent to his counsel's office,' and that 'the Board was not presently aware of the Claimant's proper address.'

Under the circumstances, there can be no question that notice of the referee's constitutes notice to the claimant. Even without the 'lack of proper address' and the 'arrangements * * * with the local Referee's office,' notice of an action by a court, board or commission given to the counsel of a party is considered notice to the party, except under a few rare circumstances not here present. 3 P.L.E. Attorneys § 45.7 C.J.S. Attorney & Client & 69; Barnes v. McClinton, 3 Pen. & W. 67 (1831); Commonwealth v. Schooley, 5 Kulp 53 (1888); Rossey v. Mayburg Chemical Company, 58 D. & C. 532 (1946).

The claimant's appeal developed as follows: No provision had been made in the award of December 4,...