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Lepf v. Chambersburg Building and Loan Association

Decided: August 17, 1938.

NICHOLAS LEPF, PETITIONER, PROSECUTOR IN CERTIORARI,
v.
CHAMBERSBURG BUILDING AND LOAN ASSOCIATION, RESPONDENT, DEFENDANT IN CERTIORARI



On certiorari, &c.

For the petitioner-prosecutor, George H. Bohlinger, Jr. (Walter D. Cougle, of counsel).

For the respondent-defendant, Henry M. Hartmann.

Before Justices Trenchard, Parker and Perskie.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This writ of certiorari brings up for review an order of the Court of Common Pleas of Mercer county dismissing the appeal of a workman in a compensation case.

The factual situation seems not in dispute. It is thus stated in the brief of the petitioner, the prosecutor of this writ: Nicholas Lepf filed his petition for compensation with the Workmen's Compensation Bureau on March 17th, 1935,

alleging that he was injured while employed by the Chambersburg Building and Loan Association, the respondent. After formal hearing that petition was dismissed on October 1st, 1935. The petitioner filed and served a notice of appeal on November 7th, 1935, with a transcript of the testimony taken before the deputy commissioner; but the transcript of the record was never transmitted to the Court of Common Pleas.

The hearing of the appeal was fixed for December 6th, 1935, and due notice thereof was given; but the petitioner did not appear and nothing was done, and no subsequent date for the hearing was fixed. On January 19th, 1937, the original attorney of the petitioner died. On April 9th, 1937, the present attorney of the petitioner moved for a continuance of the cause and at the same time the respondent moved to dismiss the appeal on the ground that the court lacked jurisdiction and that the petitioner had failed to comply with the statute and had not prosecuted his appeal nor taken any legal steps therein for more than a year then last passed. On April 12th, 1937, the judge of the Pleas dismissed the appeal. On July 23d, 1937, the prosecutor moved the Pleas to reconsider the dismissal and to reinstate the appeal. The court denied that motion; but the application was renewed by petition for a rule to show cause based upon the same affidavits. That application was denied by the Pleas on January 24th, 1938.

It will thus be seen that from November 7th, 1935, when the notice of appeal was filed, until April 9th, 1937, when an order of continuance was applied for (a period of seventeen months), no action was taken by the prosecutor; moreover the appeal was never perfected, the record in the Compensation Bureau never having been transmitted to the clerk of the Common Pleas.

The prosecutor's contention throughout seems to be that the order was illegal and oppressive to the prosecutor and was an abuse of discretion. We think not.

We think that the order dismissing the appeal was not illegal nor legally oppressive. It was plainly authorized by 149 of the laws of ...


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