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

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. ...


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