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GEORGE HAWKEY v. COMMONWEALTH PENNSYLVANIA (01/29/81)

decided: January 29, 1981.

GEORGE HAWKEY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND SHENANGO, INC., RESPONDENTS. (TWO APPEALS)



Appeals from the Order of the Workmen's Compensation Appeal Board in case of George Hawkey v. Shenango, Inc., Nos. A-76279 and Misc. 3891.

COUNSEL

Alexander J. Pentecost, for petitioner.

Linton L. Moyer, Thomson, Rhodes & Grigsby, for respondent, Shenango, Inc.

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Dissenting Opinion by Judge Blatt.

Author: Macphail

[ 56 Pa. Commw. Page 380]

This is a consolidated appeal from two orders issued by the Workmen's Compensation Appeal Board (Board) which dismissed two petitions for a rehearing filed by George Hawkey (Petitioner) following the denial by a referee and the Board of his petition to set aside a final receipt. We reverse and remand.

Petitioner filed a petition to review (later amended to a petition to set aside a final receipt) with the Department of Labor and Industry on August 19, 1976. Based on evidence adduced at two hearings the petition was dismissed by a referee. The referee's decision was affirmed by the Board on April 16, 1979. In early May, 1979 Petitioner allegedly discovered new evidence and filed a petition for a rehearing with the Board pursuant to Section 426 of The Pennsylvania Workmen's Compensation Act*fn1 (Act). At the same

[ 56 Pa. Commw. Page 381]

    time, Petitioner filed a petition for review with this Court which similarly alleged that new evidence had been discovered and requested a remand to the Board for a rehearing. The latter petition was dismissed on June 6, 1979 by the late President Judge Bowman on a motion by Shenango, Inc. (Respondent) to quash the appeal for failure to present an objection to the order of the Board which Petitioner sought to appeal. The Board granted the former petition for a rehearing on August 9, 1979 but rescinded that order on October 16, 1979 finding that this Court's action on Petitioner's appeal was final and precluded further review by the Board. Petitioner then filed a second petition for a rehearing which was also dismissed by the Board, this time on February 14, 1980. Petitioner has appealed here from the two Board orders. The matter has been submitted on briefs.

The sole issue presented for our consideration is whether or not this Court's order of June 6, 1979, dismissing the petition for review filed by Petitioner, constitutes a "final action" and, therefore, operates as a bar to a rehearing by the Board.

The grant or denial of a rehearing is within the discretion of the Board. Douglas v. Workmen's Compensation Appeal Board, 32 Pa. Commonwealth Ct. 156, 377 A.2d 1300 (1977). Thus, in general, the Board's decision with respect to a petition for a rehearing will not be disturbed on appeal absent an abuse of that discretion. Our decision in the instant case, however, rests not upon a finding of abuse of discretion, but rather upon our finding that the Board committed an error of law. Conclusions of law are, of course, subject to our review. 2 Pa. C.S. ยง 704.

Section 426 of the Act, before its recent amendment,*fn2 provided, ...


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