Opinion
Argued September 14, 1973
November 20, 1973.
Workmen's compensation — Time of appeal — The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P. L. 736 — Notice — Mailing — Statutory Construction Act of 1972, Act 1970, November 25, P. L. 707 — Statutory time periods — Filing appeal — Jurisdiction of the Commonwealth Court of Pennsylvania.
1. The Pennsylvania Workmen's Compensation Act, Act 1915, June 2, P. L. 736, requires that appeals to the Commonwealth Court of Pennsylvania from the Workmen's Compensation Appeal Board be filed within twenty days after notice of the action of the Board is served upon the appealing party, and such notice shall be deemed to be served on the date of proper mailing to such party. [570-1]
2. Provisions of the Statutory Construction Act of 1972, Act 1970, November 25, P. L. 707, establishing the method of computing statutory time periods, require that the first day of such period be excluded and the last day be included. [571]
3. Mailing an appeal is not filing an appeal in the Commonwealth Court of Pennsylvania. [571-2]
4. In the absence of fraud or the like, the Commonwealth Court of Pennsylvania acquires no jurisdiction over appeals not timely filed and cannot decide such cases on the merits. [572]
Argued September 14, 1973, before Judges KRAMER, WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 273 C.D. 1973, from the Order of the Workmen's Compensation Appeal Board in case of George General v. E. Roseman Company and Coal Operator's Casualty Company, Insurance Carrier, No. A-16620.
Petition with Department of Labor and Industry to reinstate workmen's compensation agreement. Petition granted. Employer and insurance carrier appealed to the Workmen's Compensation Appeal Board. Award modified. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Appeal dismissed. Petition for reargument denied.
Gerald J. Haas, for appellant.
Walter J. Thimby, Jr., with him Elmer C. Schmoyer and LaBrum and Doak, for appellees.
This is an appeal by George General (General) from an order of the Workmen's Compensation Appeal Board (Board) dated February 15, 1973. The Board awarded General compensation, but it also credited the employer and insurance company for monies paid by way of a settlement in conjunction with a prior stipulated termination of compensation. General's sole contention on appeal concerns the propriety of giving the employer credit for the monies so paid in light of the prohibitions found in Section 407 of The Pennsylvania Workmen's Compensation Act (hereinafter Act), Act of June 2, 1915, P. L. 736, as amended, 77 P. S. § 731.
Unfortunately, a careful perusal of the record indicates that General's appeal is not timely filed. Section 427 of the Act, 77 P. S. § 873, provides: "Such appeal must in all cases be brought within twenty days after notice of the action of the board has been served upon such party, unless the Commonwealth Court, shall, upon cause shown, extend the time herein provided for taking the appeal." This is not a case where all extension of time was requested.
Section 502 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, 17 Pa.C.S.A. § 211.502, granting 30 days for appeals, is not applicable because Section 427 of the Workmen's Compensation Act, 77 P. S. § 873 was amended by a later act, viz., the Act of February 8, 1972, P. L. ___, No. 12, § 3. See Section 1936 of the Statutory Construction Act of 1972, Act of November 25, 1970, P. L. 707, as amended, 1 Pa. S. § 1936.
The Board's order in this case was filed on February 15, 1973. The relevant docket entries and letters of notice to the parties from the Board indicate that said notice also was mailed on February 15, 1973. Section 406 of the Act, 77 P. S. § 717, in pertinent part reads: "All notices and copies to which any parties shall be entitled under the provisions of this article shall be served by mail, or in such manner as the department shall direct. For the purposes of this article any notice or copy shall be deemed served on the date when mailed, properly stamped and addressed, and shall be presumed to have reached the party to be served. . . ."
The proper method of computing any statutory period of time is found in Section 1908 of the Statutory Construction Act of 1972, Act of November 25, 1970, P. L. 707, as amended, 1 Pa. S. § 1908. The law is quite clear that such calculations exclude the first day and include the last day.
Section 1908 provides: "When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation."
Using the statutory guidelines, the last day on which General could file an appeal was March 7, 1973. General apparently mailed his appeal on March 6, 1973, but it was not received and filed until March 8, 1973. Mailing an appeal is not filing an appeal in this Court. Cf. Gauger v. Boiler Engineering Supply Co. (Nos. 118, 119 C.D. 1970, filed September 12, 1973). The issue raised by the failure to file a timely appeal is jurisdictional and as such the court, absent fraud or the like, cannot properly decide the merits of the appeal. See Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971); Shellem v. Springfield School District, 6 Pa. Commw. 527, 297 A.2d 179 (1972). Having found the appeal not to be timely filed, it must be dismissed. Therefore, we
ORDER
AND NOW, this 20th day of November, 1973, the appeal of George General is dismissed, and it is hereby ordered that judgment is entered in favor of George General and against E. Roseman Company and/or its insurance carrier, Coal Operator's Casualty Company, for total disability at the rate of forty dollars ($40) per week, beginning July 5, 1972, and continuing thereafter until such time as his disability ceases or changes in extent or character, together with legal interest for compensation withheld or not paid, all within the provisions of the Workmen's Compensation Act.