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Conway v. Mister Softee Inc.

Decided: May 5, 1966.

MARY O. CONWAY, PETITIONER,
v.
MISTER SOFTEE, INC., A PENNSYLVANIA CORPORATION, RESPONDENT, BY ITS CARRIER, NEW JERSEY MANUFACTURERS CASUALTY INSURANCE COMPANY, V. MISTER SOFTEE, INC., AN ILLINOIS CORPORATION, CO-RESPONDENT



R. Cooper Brown, J.c.c.

Brown

This case is an appeal from the Workmen's Compensation Division's dismissal of a motion to reopen the judgment entered in favor of the deceased employee's dependents.

The facts, as far as this appeal is concerned, are that Mary O. Conway, wife of Joseph Conway, brought a claim for dependency benefits against Mister Softee, Inc., a Pennsylvania corporation (hereinafter called Pennsylvania) in the Workmen's Compensation Division. She alleged that her husband was an employee of Pennsylvania and was in the course of his employment at the time of his death.

The Workmen's Compensation Division found that Mr. Conway was in the employment of not only Pennsylvania, but also Mister Softee, Inc., an Illinois corporation (hereinafter

called Illinois). However, although the court found joint employment, judgment was entered only against Pennsylvania, as it was the only employer against which the claim was brought.

The judgment was rendered on September 16, 1964. On January 5, 1965, New Jersey Manufacturers Casualty Company, which is the carrier for Pennsylvania (hereinafter called the insurer), filed a petition for reimbursement of compensation against Illinois, seeking a determination by the Workmen's Compensation Division that Illinois was a joint employer. Illinois was then before the court.

On April 13, 1965 the insurer served a notice of motion to reopen the judgment rendered against Pennsylvania so that Pennsylvania might produce additional testimony and proofs against Illinois to the end that Conway's joint employment by Pennsylvania and Illinois previously found by the court may be adjudicated and determined at a time when both joint employers are formally before the court.

At the hearing, the Workmen's Compensation Division denied Pennsylvania's motion and the petition for reimbursement on the ground that the court had no jurisdiction.

The insurer then appealed to this court.

As far as the motion to reopen the judgment is concerned, generally such relief will be granted only when the motion is made within the time allowed for appeal, in the absence of fraud or newly discovered evidence. Franzoi v. Jacob Rubinoff, Inc., 119 N.J.L. 184, at p. 185 (Sup. Ct. 1937).

In the present case the time for appeal was 45 days from September 16, 1964. Therefore, since the insurer's motion was out of time and does not show fraud or newly discovered evidence, the denial of the motion was proper.

However, this does not go to the crux of the case. What the insurer is, in effect, seeking to accomplish is the institution of an independent action in the Workmen's Compensation Division in order to have a determination made as to whether another employer is a joint employer. If the ...


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