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NELSON v. SMITH (06/11/73)

decided: June 11, 1973.

NELSON, ET AL.
v.
SMITH



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Celia Smith v. D. J. and Ruth Nelson, trading as Nelson's Homes of Claysburg, Inc., and Pennsylvania National Mutual Casualty Insurance Company, Insurance Carrier, No. A-64084.

COUNSEL

Robert G. Rose, with him Spence, Custer, Saylor, Wolfe & Rose, for appellants.

James S. Routch, with him Merle K. Evey and Patterson, Evey, Routch & Black, for appellee.

Judges Kramer, Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 9 Pa. Commw. Page 173]

Celia Smith (claimant), while doing housecleaning in the home of D. J. Nelson and Ruth Nelson, his wife, fell down the stairway leading from the kitchen to the basement of the Nelson residence. Claimant filed for workmen's compensation against D. J. and Ruth Nelson, trading as Nelson's Homes of Claysburg, Inc., and their compensation carrier, Pennsylvania National Mutual Casualty Insurance Company (Nelsons), and alleged various physical injuries resulting from the accidental fall which she had suffered on May 10, 1969.

Following a hearing, the Workmen's Compensation Referee concluded that the claimant was not in the course of her employment with Nelson's Homes of Claysburg, Inc., at the time she fell on May 10, 1969 and therefore not entitled to compensation. Claimant appealed to the Workmen's Compensation Appeal Board (Board) from the Referee's disallowance, and the Board heard the appeal on May 20, 1971.*fn1 It is asserted by counsel for the Nelsons, and not disputed by claimant's counsel, that he requested, and was granted, leave by the Board to file a brief on Nelsons' behalf within five days after receipt of claimant's brief.*fn2

[ 9 Pa. Commw. Page 174]

The record discloses that nothing further happened until the appointment in January 1972 of an entirely new board and, since the prior board had not filed an opinion, the new board extended the parties an opportunity to reargue the case. Further, the record does disclose that by letter of February 28, 1972, Nelsons' counsel responded to the new board's offer to permit reargument by stating the following: "On behalf of the Defendant, I do not desire a reargument. However, the Claimant and Appellant has not yet filed a Brief in the case. At the original argument I was given five days after Claimant's Brief to file our Brief."

This response from the attorney for Nelsons was received by the Board on March 1, 1972. Nothing happened further until November 8, 1972, when the Board filed an opinion and made an award to the claimant and thereby reversed the Referee's disallowance. Nelsons timely took this appeal from the Board's award to claimant.

Nelsons have raised several substantial questions in this appeal but, because of the disposition that we make here, we will only consider the contention that the Board erred in deciding this case without affording the Nelsons the opportunity to submit a brief in accordance with the prior board's grant of permission.

We were confronted with a nearly identical situation in Bengal v. State Board of Pharmacy, 2 Pa. Commonwealth Ct. 347, 279 A.2d 374 (1971). We stated in Bengal that "[n]othing could be clearer than the mandatory provision of the Administrative Agency Law with regard to briefs: 'All parties shall be afforded opportunity to submit briefs prior to adjudication. Oral argument upon substantial issues may be heard by the agency.' ...


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