Bigley v. Unity Auto Parts, Inc.

O’BRIEN, Chief Justice

dissenting.

I dissent from the majority’s conclusion that appellant John Bigley is entitled to yet another hearing concerning the timeliness of a second claim petition filed four years after he sustained his injuries.

Contrary to the majority’s position concerning the purpose of section 315 of the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602 [hereinafter “Act”], the limitation surely does exist, in part, to set in motion the process that will lead to an expeditious disposition of the claim. There are two limitation sections in the Act: the period for notice of injury, 77 P.S. § 631, and the period for claiming compensation, 77 P.S. § 602. If, as the majority claims, the prompt and efficient disposition of claims is not a purpose of the Act, there would be no underlying reason for the legislature to have included a time limitation for the assertion of a claim for benefits. Section 311 of the A.ct, 77 P.S. § 631, requiring notice of the injury to the employer within 120 days of the injury, would be *276 sufficient to put the employer on notice that he may have to investigate the facts surrounding an injury to an employee in case the employee makes a claim for benefits. This was the posture of the case when the initial claim petition was withdrawn. Although the employer had notice of the injury, the claim petition was withdrawn, indicating that no claim for benefits would be pursued. To require the employer to anticipate ad infinitum that a claim for Workmen’s Compensation benefits might be forthcoming is an absurd and illogical burden that section 315 was designed to alleviate. 1

A claim petition for Workmen’s Compensation benefits also begins the concomitant procedures that disclose the facts necessary for a referee to determine if, in accordance with the Act, an injured employee is entitled to benefits. In the present case a determination was never rendered because the employer relied upon Mr. Bigley’s position, as evidenced by the withdrawal of his claim petition, that he did not wish to pursue the claim.

The majority incorrectly states, “[appellee argues] that prior to the establishment of the underlying validity of the claim a withdrawal of the claim may not be reopened absent a showing that it was not voluntarily, knowingly or intelligently withdrawn.” Majority Opinion at 1177. Appellee does not suggest that a claim petition may not be filed if there has been a previous petition filed and withdrawn prior to adjudication on the merits. Rather, employer argues, and rightly so, that such a petition may not be filed if the limitation period provided in § 315 of the Act has run 2 , *277 thereby extinguishing the right and the remedy. Segal v. Segal, 201 Pa.Super. 367 , 191 A.2d 858 (1963); Helstrom v. W.C.A.B., 43 Pa.Cmwlth. 113 , 401 A.2d 882 (1979).

The majority has ignored the hearing held before Referee Floyd Warren on May 8, 1978, and the submission of briefs that followed. At the hearing counsel for Mr. Bigley stated,

*278 “[W]e should dispose of this issue about the time limitations of the claim because it would not serve anyone worthwhile to get into a rather lengthy period of reading and preparation of the record on the technical issues, when there is a technical issue which could be an impediment.”

Notes of Testimony of Hearing before Referee Warren, May 8, 1978 at 9. Additionally, while stating that Mr. Bigley would be available to testify along with about six other persons on the issue of whether appellant was in the course of employment when he was injured, counsel did not choose to present testimony at the hearing nor did he request to present testimony at some future date on the issue of the validity of the withdrawal of the initial claim petition and the untimely filing of the second petition. Notes of Testimony at 2, 9.

Counsel for appellant had every opportunity at the May 8, 1978, hearing to offer an explanation or assert an argument that might suggest an involuntary, unknowing or unintelligent withdrawal of the first claim petition or the existence of fraud or some excusable mistake. 3 Instead, appellant’s counsel has argued only that the withdrawal of the claim was not a decision on the merits and it therefore could be reinstated, presumably at any time. 4 There were no requests or suggestions at the hearing, or at any level of appeal, that a hearing must be held to inquire into the facts surrounding the withdrawal of the initial petition, save the hypothesizing of the majority. The reason is, of course, that *279 the proceedings before Referee Warren on May 8, 1978, provided just this opportunity and there were no allegations made.

Appellant’s first counsel appears to have ably represented Mr. Bigley. He filed a suit in trespass and filed a claim for Workmen’s Compensation benefits, two exclusive remedies, apparently in an effort to obtain everything possible for his client. 5 He was obviously knowledgable about the Act and its limitation provisions, as evidenced by statements in the first-filed claim petition. 6 Since new counsel for Mr. Bigley had the opportunity to allege fraud or mistake at the hearing before the referee, if it indeed existed, and in the absence of any such allegation, this Court should affirm the referee’s finding that the untimely claim petition of Mr. Bigley is barred by § 315 of the Act. Any other result completely ignores the purpose of the limitation and disregards this Court’s explanation that:

“[T]he time limit in which claims might be filed was placed in the act not only to produce a uniform practice, but to enable employers to know the period of time they could be called upon to respond for just claims, so that they might not be constantly expecting stale claims of doubtful merit.”

Horn v. Lehigh Valley R.R. Co., 274 Pa. 42, 44 , 117 A. 409, 410 (1922).

I would affirm the Order of the Commonwealth Court.

. The majority’s decision today might be characterized as palatable because a relatively short period of time elapsed between the expiration of the period for claiming compensation and the filing of the second petition. However, the effect of the decision is to open Pandora’s box, because an injured employee could attempt to refile two, five or even ten. years later.

. Although this writer discovered no cases factually identical to the present case, other states have dealt consistently with the effect of a withdrawn, timely-filed claim petition and a subsequent, untimely petition when there has been no adjudication on the merits. In DeMars v. Robinson King Floors, Inc., 256 N.W.2d 501 (Minn. 1977) *277 the injured employee filed a claim petition for benefits and the employer denied liability. At a pre-trial conference before a compensation judge, an order of continuance was entered because the employee failed to file a substantiating medical report. Two and one-half years later the claimant’s attorney withdrew the petition. A year later, new counsel for the employee petitioned to have the dismissed claim reinstated. The Minnesota Supreme Court, in affirming the denial of the petition stated,

“When an employee files a claim petition, the statute of limitations is tolled during its pendency since the commencement of an action arrests the running of the applicable statute of limitations. However, if a claim is dismissed without a determination on the merits, the result is the same as if it had never been filed and the statute of limitations had never been tolled.” (Footnote omitted). Id. at 505 .

In Turner v. Keller Kitchen Cabinets, Southern, Inc., 247 So.2d 35 (Fla. 1971), the Florida Supreme Court analyzed whether a letter from the claimant’s wife constituted a claim where a prior claim had been filed and withdrawn by the claimant’s attorney. The Court stated, “[sjince the initial claim was withdrawn without adjudication on the merits, we find that it was subject to renewed by timely action.” Id. at 38 . (Emphasis Added).

Gordy v. Callaway Mils Co., Ill Ga.App. 798, 143 S.E.2d 401 (1965) dealt with a widow’s claim for compensation filed following her withdrawal of a prior claim. The Georgia Court of Appeals stated,

“The widow’s claim... although filed within the one year limitation, was effectively invalidated by its voluntary withdrawal by the claimant. If a claim is withdrawn by the party filing it before a hearing is had, it is as though no claim had been filed, and the board would be without jurisdiction to entertain a second claim filed after the expiration of the statutory limitation...”

Id. at 800, 143 S.E.2d at 402-403 .

Finally, the New York Court of Appeals in Joyce v. Eastman Kodak Co., 238 N.Y. 142 , 144 N.E. 482 (1924) held that an employee who discontinued her compensation claim to pursue an action for damages against her employer was precluded from reinstating the claim by the statute of limitations of the Workmen’s Compensation Law limiting the time for filing claims to one year from injury. Justice Cardozo, writing for a unanimous court stated, “[i]n vacating the order of withdrawal the board has attempted through the fiction of relation to make continuous in law what was discontinuous in fact.” Id. at 145 , 144 N.E. at 483 .

. “A claim withdrawn after being timely filed must nevertheless be refiled within the required time or else be barred unless such withdrawal was caused by fraud or some excusable mistake. Where a claim filed in time is followed by a written request withdrawing the case, which request is accepted by the commission, a subsequent application for a hearing some time after the elapse of the statutory period, comes too late.”

100 C.J.S. Workmen’s Compensation § 468(6) 1958 (Footnotes omitted).

. “It is appellant’s contention that § 315 is satisfied for all times if it is once satisfied...” Appellant’s brief at 24.

. As the majority noted, Mr. Bigley and his employer entered into a settlement in the trespass action. “In the agreement, several hundred thousand dollars were paid directly to Mr. Bigley. In addition, he was paid an annual compensation on a monthly basis. I think it amounts to approximately eighteen thousand dollars per year for life.” Notes of Testimony at 4.

. Part 13 of the initial claim petition stated,

“A civil action was filed on my behalf alleging that I was not in the course of employment. This action is filed to protect my rights under the Workmen’s Compensation Act within the statutory period allowed for filing claims.”