Murhon v. Commonwealth

414 A.2d 161, 51 Pa. Commw. 214, 1980 Pa. Commw. LEXIS 1398

• Court: Commonwealth Court of Pennsylvania
• Decided: May 7, 1980
• Docket: Appeals, Nos. 1658 C.B. 1979 and 1799 C.B. 1979
• Status: Published

Opinion

Opinion by

Judge Wilkinson, Jr.,

Kawecki Berylco (employer) and its insurer The Hartford Mutual Insurance Company, petitioners in No. 1799 C.D. 1979, and petitióner (claimant) in No. 1658 C.D. 1979 have brought cross-appeals from the order of the Workmen’s Compensation Appeal Board (Board) remanding the case to the referee.

Claimant was employed by the employer for approximately 25 years. From October 2, 1957 to February 24, 1976, his last day of employment, claimant worked in the strand cleaning department; his work entailed running beryllium strips through cleaning machines. The referee awarded claimant workmen’s compensation benefits for total disability caused by berylliosis, as tbe result of claimant’s exposure to tbe dust and fumes from beryllium in bis employment. Tbe employer appealed to tbe Board, asserting tbat there was no substantial competent evidence to support a finding tbat claimant was so totally disabled and tbat tbe medical evidence indicated tbat claimant does not suffer berylliosis. Claimant also appealed to tbe Board, asserting tbat tbe referee did not make provision pursuant to Section 440 of Tbe Pennsylvania "Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 3 of tbe Act of February 8, 1972, P.L. 25, 77 P.S. §996, for tbe costs of litigation and medical examinations, and tbat tbe referee erred in giving credit to tbe employer for disability pension benefits paid to claimant.

Tbe Board remanded tbe case to tbe referee for several reasons. First, tbe Board directed tbe referee to determine whether tbe alleged occupational disease in tbe case is tbe occupational disease of poisoning by beryllium as specifically listed in Section 108(a)¹ of tbe Act, 77 P.S. §27.1 (a), or is tbe occupational disease berylliosis. Tbe Board noted tbat if tbe referee’s determination is berylliosis, then tbe referee must make tbe findings required by Section 108 (n) of tbe Act, 77 P.S. §27.1 (n), namely that claimant was exposed to a disease by reason of his employment, tbat the disease is causally related to tbe claimant’s industry or profession, and that tbe incidence of tbe disease is substantially greater in tbe industry or occupation than in tbe general population. See Scranton Garment Co. v. Workmen’s Compensation Appeal Board, 33 Pa. Commonwealth Ct. 190, 381 A.2d 210 (1977). Additionally, tbe Board directed tbe referee to make provision, if proper, for. medical expenses and tbe costs under Section 440 and to set forth bis reasoiling in awarding a credit to the employer for disability pension benefits.

Over the last ten years this Court, following Overmiller v. D. E. Horn & Co., Inc., 191 Pa. Superior Ct. 562, 159 A.2d 245 (1960), has departed from the well established doctrine that remand orders of the Board are interlocutory and. not appealable. In doing so we have developed three exceptions as set forth in American Co. v. Workmen’s Compensation Appeal Board, 37 Pa. Commonwealth Ct. 169, 389 A.2d 263 (1978): the appeal to the Board resulting in remand was untimely; the remand, based on the record, could not produce a different result; or the Board’s action in granting the remand was based on a clear error of law. As explained in the decisions which developed the exceptions, it was felt there would be a saving of litigants ’ time and money if these exceptions were allowed. Our experience has been that the existence of the exceptions has been counterproductive. Apparently the party suffering the remand now files an appeal hoping he can convince this Court that his case fits into one of the exceptions or that he can develop still a further exception. Indeed it has gotten to the point, as here, that there are cross-appeals from a remand order!

In view of this, our Court now returns to the time tested doctrine that a remand order of the Board is interlocutory and unappealable as a matter of right, without exception.²

Accordingly, we will enter the following

Order

And Now, May 7, 1980, the appeals of petitioners from the order of the Workmen’s Compensation Appeal Board, Docket No. A-76764, dated July 26, 1979, are hereby quashed.

1 Added by Section 1 of the Act of October 17, 1972¿ P.L. 930, as amended.

2 See, however, 42 Pa. C.S. §702(b) and Pa. R.A.P. 1311 et seq.