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COMMONWEALTH PENNSYLVANIA AND WILLIAM A. CHERRY v. COMMONWEALTH PENNSYLVANIA (10/05/77)

decided: October 5, 1977.

COMMONWEALTH OF PENNSYLVANIA AND WILLIAM A. CHERRY, JR., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND JONES & LAUGHLIN STEEL CORP., RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of William A. Cherry, Jr. v. Jones & Laughlin Steel Corp. and Commonwealth of Pennsylvania, No. A-71434.

COUNSEL

Mary Ellen Krober, Assistant Attorney General, for petitioner, Commonwealth.

Raymond F. Keisling, with him Will & Keisling, for respondent.

Judges Crumlish, Jr., Wilkinson, Jr. and Rogers, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 32 Pa. Commw. Page 123]

The Commonwealth has appealed to this Court from an order of the Workmen's Compensation Appeal Board (Board) dated October 6, 1976. That order, issued by the Board on its own motion, without a petition for rehearing and without granting any of the parties involved a further opportunity to be heard, vacated a prior order of the Board dated September 10, 1976. We find it necessary to set aside the second order of the Board and reinstate its initial holding.

On January 6, 1975, the claimant filed a petition for compensation under The Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 711, alleging total disability due to black lung disease. An evidentiary hearing was held before the Referee on August 13, 1975. On April 15, 1976, the Referee awarded compensation to the claimant as of July 26, 1975. This compensation was set at a rate of $114.00 per week, with the Commonwealth ordered to pay 25 percent, and the employer 75 percent.

[ 32 Pa. Commw. Page 124]

Both the Commonwealth and the employer appealed to the Workmen's Compensation Appeal Board from the Referee's order. The Commonwealth appealed only the amount of compensation awarded, arguing that it was in excess of the applicable maximum rate. The employer, on the other hand, appealed not only the amount of compensation awarded, but also argued the apportionment between the employer and the Commonwealth was incorrect and that the claimant's medical evidence was insufficient.

Following an argument heard on July 14, 1976, on September 10, 1976, the Workmen's Compensation Appeal Board issued an order which sustained the Commonwealth's appeal, and lowered the rate of compensation to $106.00 per week. The Referee's decision was upheld in all other respects. No appeal was taken by the employer from this order.

On October 6, 1976, the Board issued a second order which vacated its order of September 10, and which stated that "this case is remanded to the Referee to correct the amount of payments and determine the date of disability. Thereafter the Referee is to make new and appropriate findings, conclusions and disposition." It is from this second order that the Commonwealth has appealed to this Court, asking that we set aside the October 6, 1976 order, and reinstate the order of September 10, 1976.

Before reaching the issues of law directly involved in this case, it should be noted that the employer has in his brief raised certain allegations concerning events which occurred outside the record in this case. These include the statement that at argument before the Board all parties were advised that an order would be issued remanding the case to the Referee, and that no ...


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