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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (10/24/78)

decided: October 24, 1978.

COMMONWEALTH OF PENNSYLVANIA, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, MORGAN'S WONDER BOY RESTAURANT AND RUTH S. MOSKAL, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Ruth S. Moskal v. Morgan's Wonder Boy Restaurant and Home Insurance Company, No. A-72788.

COUNSEL

Sandra S. Christianson, Assistant Attorney General, for petitioner.

John F. Will, Jr., with him Will & Keisling, for respondent.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 38 Pa. Commw. Page 281]

This is a petition for review filed by the Commonwealth of Pennsylvania, Department of Labor and Industry (Department), from the decision of the Workmen's Compensation Appeal Board (Board), dated August 11, 1977. The Board affirmed the referee's determination dismissing what the referee termed as the Department's "complaint," but which the record shows was a "Notice of Hearing," against the Home Insurance Company (Home).

The Notice of Hearing, dated September 27, 1976, and received by Home on September 28, 1976, notified Home that a hearing had been scheduled for October 22, 1976, for the purpose of considering whether Home failed to comply with Sections 401.1, 406.1 and 413, The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 710, 717.1 and 774, and "rule 121.17 promulgated pursuant thereto," (34 Pa. Code § 121.17), in terminating

[ 38 Pa. Commw. Page 282]

    compensation payments to Ruth S. Moskal.*fn1 The hearing was held as scheduled on October 22, 1976. On December 28, 1976, Home filed a motion for Dismissal of the Complaint of Non-Compliance with the referee, predicated upon the Department's failure to comply with the mandatory time requirements of the regulation set forth in 34 P.S. Code § 121.27(d). In a decision dated February 22, 1977, the referee determined that the Department had not complied with the regulation and ordered that the complaint, i.e., the Notice of Hearing should be dismissed. The Board affirmed the referee's decision and the Department brought the instant appeal.

We perceive that the narrow issue of law to be determined by the petition now before us is whether the time requirements set forth in Section 121.27(d) of regulations adopted by the Department on April 25, 1975, are binding upon the Department when it undertakes proceedings against an employer for alleged non-compliance with Sections 401.1 406.1 and 413 of the Act. We hold that they are.

Section 401.1 is not relevant to our disposition of the issue. Section 406.1 simply provides, inter alia, that payments of compensation may not be terminated without compliance with Section 413. Section 413 provides, inter alia, that if an employer terminates compensation payments without an agreement, a final receipt or the filing of a petition, the employer "shall be subject to penalty as provided in Section 435." Subsection (a) of Section 435 authorizes the Department to establish and promulgate rules and regulations

[ 38 Pa. Commw. Page 283]

    which would insure full compliance by the employer with the Act and which would explain and enforce its provisions. Subsection (b) authorizes the Department to "give notice" to persons who are not complying with the Act. Subsection (c) authorizes the Board to establish rules of procedure to assure expeditious determination of matters brought before it. Subsection (d) states that ...


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