Summary
holding that nunc protunc relief was warranted where the hospitalization of the appellant's counsel prevented the filing of a timely appeal
Summary of this case from Roberts v. CommonwealthOpinion
February 4, 1983.
Workmen's compensation — Appeal — Hospitalization — Prejudice.
1. In a workmen's compensation case, when the employer's non-negligent failure to file an appeal in timely fashion is attributable to the hospitalization of the employer's counsel, and when the failure is promptly corrected without prejudice to the claimant, the appeal should be accepted and decided on its merits. [569]
Submitted on briefs June 7, 1982, to Judges ROGERS, BLATT and CRAIG, sitting as a panel of three.
Appeal, No. 131 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in the case of Angelo M. Rodriguez v. Tony Grande, Inc., No. A-79032.
Petition to the Department of Labor and Industry for workmen's compensation benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Claimant filed motion to quash. Motion to quash granted and appeal dismissed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Elliott B. Goldstan, with him John A. Goldstan, Goldstan Goldstan, for petitioner.
James M. Potter, Liever, Hyman Potter, P.C., for respondent, Angelo M. Rodriguez.
The petitioner, Tony Grande, Inc., appeals here from a decision of the Workmen's Compensation Appeal Board (Board) which dismissed its appeal and granted the motion to quash filed by the claimant (Rodriguez). The claimant argues that the appeal was not filed within the time period prescribed in Section 423 of The Pennsylvania Workmen's Compensation Act (Act), and it is undisputed that the appeal was not filed within the 20 day period provided for by the Act.
Act of June 2, 1915, P.L. 736, as amended, 77 P. S. § 853.
The petitioner contends that it was an abuse of discretion for the Board to refuse to exercise its power to extend the time for appeal from a referee's determination beyond the 20 day period allowable here, and it argues that "cause was shown" for the delay in its documentation of the unpredicted and unavoidable hospitalization of its attorney 10 days into the appeal period.
While hospitalized for cardiac disease and cardiac arrhythmia, he had a cardioversion performed which was complicated by transcient ischemic attacks shortly thereafter.
Section 423 of the Act, 77 P. S. § 853, provides in pertinent part:
Any party in interest may, within twenty days after notice of a referee's award or disallowance of compensation shall have been served upon him, take an appeal to the board. . . . The board may, upon cause shown, extend the time provided for in this article for taking such appeal or for the filing of an answer or other pleading.
While it is true that mere administrative oversight or negligence occurring in the office of the appellant's lawyer is not cause for allowing a late appeal, we are faced in this case with a non-negligent failure to file a timely appeal due to the hospitalization of petitioner's counsel, a failure which was promptly corrected by the attorney's associate, immediately upon it being brought to his attention three days after the appeal period had lapsed. Our Supreme Court held in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 11.33 (1979) where a factually similar situation was presented, that where no prejudice occurred, the petitioner should not lose his day in court due to the non-negligent act of his attorney.
See Wertman v. Workmen's Compensation Appeal Board, 57 Pa. Commw. 169, 426 A.2d 205 (1981).
Inasmuch as the failure to file a timely appeal was non-negligent, and any prejudice to the claimant from the three day delay would necessarily be minimal, we will reverse the Board's decision and order that the appeal be accepted and decided on its merits.
ORDER
AND NOW, this 4th day of February, 1983, the decision of the Workmen's Compensation Appeal Board in the above-captioned matter is hereby reversed, and the case is remanded to them with directions to allow the appeal.