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M. BRENNER & SONS v. WORKMEN'S COMPENSATION APPEAL BOARD (NELMA JACOBS) (02/22/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 22, 1983.

M. BRENNER & SONS, INC., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (NELMA JACOBS), RESPONDENTS

Appeal from the Order of the Workmen's Compensation Appeal Board in case of Nelma Jacobs v. M. Brenner & Sons, Inc., No. A-80003.

COUNSEL

Daniel K. Deardorff, William F. Martson, P.C., for petitioner.

Bruce D. Foreman, Melman, Gekas, Nicholas & Lieberman, for respondent, Nelma Jacobs.

President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 72 Pa. Commw. Page 244]

The Workmen's Compensation Appeal Board upheld a referee's decision which awarded benefits to

[ 72 Pa. Commw. Page 245]

Nelma Jacobs. M. Brenner & Sons, Inc. (Brenner) appeals. We affirm. We quash that part of Brenner's appeal which attempts to raise again the question of statute of limitations.

Jacobs' petition was dismissed by the referee, citing the statute of limitations.*fn1 The Board reversed*fn2 and remanded for a decision on the merits. Brenner appealed the statute of limitations issue to this Court and we quashed the appeal as untimely.*fn3 On remand, the referee awarded benefits. The Board affirmed. This appeal followed.

As to the statute of limitations issue, Brenner contends that, citing Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980), a remand order of the Board is interlocutory and unappealable as a matter of right, and so an appeal cannot be quashed as untimely. Murhon, however, was decided on May 7, 1980. Brenner's original appeal was quashed on August 20, 1979.

[ 72 Pa. Commw. Page 246]

At the time of the appeal, Brenner's contention fit within one of the three exceptions in American Can Co. v. Workmen's Compensation Appeal Board, 37 Pa. Commonwealth Ct. 169, 389 A.2d 263 (1978), i.e., the Board's action in granting the remand was based on a clear error of law.*fn4 In quashing Brenner's appeal, we conclude that Murhon is to be applied only prospectively. In Schreiber v. Republic International Corp., 473 Pa. 614, 622, 375 A.2d 1285, 1289 (1977), the Pennsylvania Supreme Court held that, in order to be applied prospectively only, a decision must establish a new principle of law, either in overruling clear past precedent or by deciding an issue of first impression whose resolution was not clearly "foreshadowed." Murhon clearly overrules past precedent:

Over the last ten years this Court . . . has departed from the well established doctrine that remand orders of the Board are interlocutory and not appealable. In doing so we have developed three exceptions. . . . As explained in the decisions which developed the exceptions, it was felt there would be a savings of litigants' time and money if these exceptions were allowed. Our experience has been that the existence of the exceptions has been counterproductive. . . .

In view of this, our Court now returns to the time tested doctrine that a remand order of the Board is interloctory and unappealable

[ 72 Pa. Commw. Page 247]

    as a matter of right, without exception. (Footnote omitted.)

Murhon at 217, 414 A.2d at 162-63.

We quash Brenner's appeal on the statute of limitations issue and move at last to the merits of the case.

Jacobs was awarded benefits for work-related injuries.*fn5 Without taking additional evidence, the Board affirmed the award. Where the party with the burden of proof has prevailed before the referee and the Board has taken no additional evidence, our review is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or necessary factual findings were unsupported by substantial and competent evidence. Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 498, 421 A.2d 653, 655 (1980). The referee, in reviewing the evidence, adopted the testimony of Jacobs' expert witness, Dr. Douglas Sanderson, as to the kind, extent and cause of Jacobs' injuries.*fn6 Our careful review

[ 72 Pa. Commw. Page 248]

    of the record convinces us that this conclusion was supported by substantial and competent evidence.

Affirmed.

Order

The order of the Workmen's Compensation Appeal Board, No. A-80003 dated May 21, 1981 is hereby affirmed. Further, that part of the appeal of M. Brenner & Sons, Inc., regarding the statute of limitations issue is quashed.

Disposition

Affirmed. Portion of appeal relating to statute of limitations quashed.


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