40 A.2d 905 | Pa. Super. Ct. | 1944
Argued October 26, 1944. In this workmen's compensation case there is no question that the claimant's husband sustained fatal injuries in the course of his employment. The principal dispute before the referee was whether the Lauter Construction Company and its insurance carrier, Manufacturers' Casualty Company, were liable as the statutory employer or whether Norman McClain, the direct employer, a subcontractor, and Coal Operators Casualty Company, his carrier, were liable. The board affirmed the referee in holding Lauter Construction Company and its carrier liable. No appeal was filed to the board's action until April 15, 1944, or 22 days after mailing of the board's decision.
The Coal Operators Casualty Company filed a petition in the court of common pleas to strike off the appeal of the Lauter Construction Company averring that the opinion of the board was mailed to all parties on March 24, (Friday) 1944, and that no appeal was taken therefrom within 20 days after that date. The respondents, appellees herein, did not deny these averments. In their amended answer they set forth that the notice of the board's action did not arrive at their attorney's office in the next day's morning mail and as his office closed at 1:00 P.M. Saturday, it was not received by him until Monday, March 27. The lower court refused *514 to strike off the appeal and from that action the present appeal was taken.
It is a familiar rule that the facts averred in a petition and not denied in the answer are taken as admitted: Link B. L. Assn. v. Melnick et al.,
Section 427, Article IV, of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended,
Time of service is very definitely determined by section 406, article IV, of that Act,
It is mandatory that appeals from the board to the *515
court of common pleas must be taken within 20 days after notice has been mailed unless for cause shown the court grants an extension of time within the 20 day limit: Wise v. CambridgeSprings Boro.,
The Lauter Construction Company relies upon Conley v.Allegheny County,
The motion of the Lauter Construction Company to quash the appeal on the ground that it was taken from an interlocutory decree or order of the court below is overruled. If an allowance of an appeal is a matter for the exercise of a court's discretion then its action, unless there has been an abuse of that power, is not reversible: Felts v. Delaware,Lackawanna Western Railroad Company,
The order of the court below refusing to strike off the appeal is reversed at the appellee's costs.