Appeal from the Order of the Workmen's Compensation Appeal Board in case of Charles D. Phillips v. Joseph A. Colabella, d/b/a Cornet Trading Co. and Sorrento Italian Imports, No. A-68535.
Robert A. Freedberg, for appellant.
Fredric C. Jacobs, with him James N. Diefenderfer, for appellee.
Judges Crumlish, Jr., Kramer and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 20 Pa. Commw. Page 599]
This is an appeal by Charles D. Phillips from an order of the Workmen's Compensation Appeal Board, dated October 17, 1974, which remanded Phillips' case to the referee for additional findings of fact relative to whether Phillips was injured in the regular course of his employer's business. Phillips' employer, Joseph A. Colabella, has moved to quash the appeal on the ground that the remand order is interlocutory and thus unappealable. We must grant Colabella's motion.
The general rule is that an order of the Board remanding a case to a referee is interlocutory and that an appeal therefrom is premature and should be quashed. Screw & Bolt Division of Modulus v. Workmen's Compensation Appeal Board, 12 Pa. Commonwealth Ct. 380, 316 A.2d 151 (1974); Royal Pioneer Ind., Inc. v. Workmens' Compensation Appeal Board, 11 Pa. Commonwealth Ct. 132, 309 A.2d 831 (1973); Riley Stoker Corporation v. Workmen's Compensation Appeal Board, 9 Pa. Commonwealth Ct. 533, 308 A.2d 205 (1973); United Metal Fabricators, Inc. v. Zindash, 8 Pa. Commonwealth Ct. 339, 301 A.2d 708 (1973). The reason for this rule was most recently summarized by Judge Blatt in Workmen's Compensation Appeal Board v. E-C Apparatus Corp., 20 Pa. Commonwealth Ct. 128, 131, 339 A.2d 899, 901 (1975).
"Nevertheless we believe that the rule against appealing interlocutory orders is sound. When the Board has acted properly in remanding, the quashing of an appeal from such an order would avoid the delay which might result from our consideration of whether or not the remand was proper."
In two cases we have entertained appeals from what appeared to be interlocutory orders. Riley Stoker, supra,
[ 20 Pa. Commw. Page 600]
and United Metal Fabricators, supra. The thrust of Riley Stoker and United Metal Fabricators is that a remand to the Board must be "clearly and undeniably in error" before we will consider such an order appealable. Royal Pioneer, supra. In his brief Phillips describes the remand order in the instant case as "inappropriate" in light of a presently existing record "sufficient to permit a decision on the merits."*fn1 This may or may not be an accurate characterization of the remand order, but it does not bring the instant case within the ambit of Riley Stoker, supra, or United Metal Fabricators, supra.
[ 20 Pa. Commw. Page 601]
The authority of the Board to remand for more precise findings of fact is established by section 419 of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 852 (Supp. 1975-1976). The Board may not remand to effect a usurpation of the referee's role as fact finder, but such is not the instant case. Universal Cyclops Steel Corporation v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973). See also Workmen's Compensation Appeal Board v. Borough of Ferndale, 20 Pa. Commonwealth Ct. 269, 342 A.2d 146 (1975) and Forbes Pavilion Nursing Home, Inc. v. Workmen's Compensation Appeal Page 601} Board, 18 Pa. Commonwealth Ct. 352, 336 A.2d 440 (1975). Indeed, as a matter of procedure, we encourage the Board to vigorously pursue its ...