Opinion
Argued October 5, 1973
November 27, 1973.
Workmen's compensation — Time of appeal — Calculation of appeal period — Jurisdiction of reviewing court — Extension of time — Notice of decision — Incorrect address — Mall delay.
1. The time for taking workmen's compensation appeals is computed by excluding the first day and including the last day of the prescribed period. [158]
2. The timeliness of an appeal and compliance with statutory appeal provisions go to the jurisdiction of the court to hear and decide the appeal, and the time for taking appeals fixed by the legislature may not be extended as a matter of indulgence but only in the event of fraud or a breakdown in the court's operation through a default of its officers. [159]
3. An extension of the appeal period will not be granted in a workmen's compensation case on the ground that the Workmen's Compensation (Appeal) Board failed to mail a copy of its decision to the new address of an attorney for a party, of which new address the board had no notice, when notice was mailed to the party himself at a correct address and where there is no evidence of unsual or unreasonable delay in the transmission of such notice through the mails to the appealing party. [159-60]
Argued October 5, 1973, before Judges CRUMLISH, JR., WILKINSON, JR., and MENCER, sitting as a panel of three.
Appeal No. 293 C.D. 1972, from the Order of the Court of Common Pleas of Philadelphia County in case of In The Matter of Edmund A. Iannotta, Deceased, Marie D. Iannotta, Claimant, v. Philadelphia Transportation Company, Self-insured, No. 935 June Term, 1970.
Petition with Department of Labor and Industry for death benefits. Petition denied. Petitioner appealed to the Workmen's Compensation (Appeal) Board. Appeal dismissed. Petitioner appealed to the Court of Common Pleas of Philadelphia County. Appeal quashed. HIRSH, J. Petitioner appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Benjamin Dresnin, for appellant.
Thomas F. McDevitt, for appellee.
Claimant in this Workmen's Compensation case filed a fatal claim petition on May 5, 1967, following the death of her husband on January 6, 1966, at a time when he was driving a Philadelphia Transportation Company bus. Although claimant was represented by counsel and eight hearings were scheduled, there was never any testimony offered by the claimant in support of her claim. On June 30, 1969, the Referee disallowed the claim and an appeal was taken to the Workmen's Compensation Board (Board). The Board, by decision dated and mailed May 14, 1970, affirmed the Referee and dismissed claimant's appeal. On June 4, 1970, claimant filed an appeal from the Board's ruling to the Court of Common Pleas of Philadelphia County. The defendant company filed a motion to quash the appeal for the reason that it was filed too late. The motion to quash the appeal was granted by the lower court and this appeal followed. We must affirm.
At the time of the appeal to the Court of Common Pleas of Philadelphia Comity, Section 427 of The Workmen's Compensation Act, Act of June 2, 1915, P. L. 736, as amended, 77 P. S. § 873, provided that an appeal from the Board to a common pleas court "must in all cases be brought within twenty days after notice of the action of the board has been served upon such party. . . ." Further, at that time, Section 406; of The Workmen's Compensation Act, as amended, 77 P. S. § 717, provided that such notice "shall be served by mail . . ." and ". . . 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. . . ."
Since the time for taking appeals is computed by excluding the first day and including the last day of the prescribed period, June 3, 1970 was the last day that claimant's appeal from the Board's decision could have been filed with the Court of Common Pleas of Philadelphia County. Malis v. Lieberman, 439 Pa. 602, 266 A.2d 745 (1970).
The instant appeal was not filed until June 4, 1970, or twenty-one (21) days after the service by mail of the Board's decision. Where an Act of Assembly fixes the time within which an appeal may be taken, the time may not be extended as a matter of indulgence. Nardo v. Smith, 448 Pa. 38, 292 A.2d 377 (1972); Luckenbach v. Luckenbach, 443 Pa. 417, 281 A.2d 169 (1971).
The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of the court to hear and decide the appeal. Department of Transportation v. Brougher, 5 Pa. Commw. 531, 291 A.2d 811 (1972); Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). The courts have no power to extend the period for taking appeals, absent fraud or a breakdown in the court's operation through a default of its officers. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938). Claimant makes no argument here based on these narrow exceptions.
Claimant now contends that she should have had an extension of the appeal period since the decision of the Board, although mailed to her correct address, was also mailed to her attorney at his former office address of 1422 Chestnut Street, Philadelphia, instead of his new office address of 1300 Two Penn Center Plaza, Philadelphia.
There is nothing in the record to indicate that the Board was ever notified of claimant's attorney's change in office address. More importantly, it is admitted that the Board's mailing to the claimant was to the correct address. See Kitchell v. Unemployment Compensation Board of Review, 9 Pa. Commw. 149, 305 A.2d 728 (1973).
Finally, there is nothing in this record that discloses that there was an unusual or unreasonable delay in the transmission of the Board's notice of its decision through the mails to the claimant. Therefore, Sinclair v. Shaffer Lumber Co., 180 Pa. Super. 234, 119 A.2d 682 (1956), relied upon by claimant, is inapposite.
The order of the Court of Common Pleas of Philadelphia is hereby affirmed.