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ABINGTON SCHOOL DISTRICT v. COMMONWEALTH PENNSYLVANIA (03/09/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 9, 1983.

ABINGTON SCHOOL DISTRICT, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT. H. RUSSELL PITTMAN, AND ALL OTHERS SIMILARLY SITUATED, INTERVENORS

Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of H. Russell Pittman, No. B-178582.

COUNSEL

David R. Keller, Obermayer, Rebmann, Maxwell & Hippel, for petitioner.

Charles Donahue, Associate Counsel, with him James K. Bradley, Associate Counsel, and Richard L. Cole, Jr., Chief Counsel, for respondent.

No appearance for intervenor.

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

Author: Crumlish

[ 72 Pa. Commw. Page 458]

The Unemployment Compensation Board of Review, by order, granted benefits to H. Russell Pittman.*fn1 The Abington School District (District) appeals. We quash the appeal as interlocutory.

In June of 1977 the collective bargaining agreement between the District and the Abington Education Association (Association) expired. Negotiating sessions continued throughout the summer and, on August 24th, the Association offered to return to work on September 6th, the scheduled first day of classes, under the terms of the expired agreement. When the District requested a no-strike guarantee from the Association, it refused.*fn2 Based on this refusal and the District's concern for the children, the school calendar was adjusted to reflect a starting date of September 12th and later September 19th. When the Association finally agreed to give a forty-eight hour strike notice, school was set for and finally began on September 26th. The school calendar was adjusted to reflect the full 184 days called for in the old collective

[ 72 Pa. Commw. Page 459]

    bargaining agreement and the Association members, after a new agreement was finally reached, received all benefits and pay increases retroactively.*fn3

Pittman then sought and received unemployment benefits for the delay period before school began. The referee concluded that a work stoppage had occurred and that such stoppage could be attributable to the District, thus constituting a lockout within the meaning of Section 402(d) of the Unemployment Compensation Law.*fn4 However, the referee's order granting benefits also included a remand*fn5 to the Bureau of Employment Security for a determination of Pittman's eligibility under the provisions of Section 4(u)*fn6 and 401(d)*fn7 of the Law. The District appealed to the Board which affirmed the referee's grant of benefits under Section 402(d), noting that that was the only issue presented to it.

Although neither party raises the propriety of this appeal, we will, because the issue of whether an appeal is interlocutory "goes to the appellate court's jurisdiction and may be raised sua sponte." Davanzo v. Finelli, 293 Pa. Superior Ct. 70, 72, 437 A.2d 995, 996 (1981).

[ 72 Pa. Commw. Page 460]

In Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980), this Court readopted the position that remand orders of the Workmen's Compensation Appeal Board are interlocutory and unappealable. In abandoning exceptions to the unappealability of such orders, we wrote:

As explained in the decisions which developed the exceptions, it was felt there would be a saving 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 interlocutory and unappealable as a matter of right, without exception.

Id. at 217, 414 A.2d at 163.

This reasoning is equally applicable here. We will not review the issue of claimant's eligibility piecemeal.*fn8

The appeal is quashed.

Order

The appeal taken from Unemployment Compensation Board of Review order No. B-178582 dated December 11, 1979, is hereby quashed.

Disposition

Appeal quashed.

Dissenting Opinion by Judge MacPhail:

I respectfully dissent.

The order of the Unemployment Compensation Board of Review, which is the order appealed from

[ 72 Pa. Commw. Page 461]

    in the instant case, is a final order. Our decision in Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980) concerned an order of the Board which was not final. I, therefore, do not believe Murhon is controlling in the instant case.

Whether or not the referee's order was interlocutory and whether or not the referee had the authority to remand the case to the Office of Employment Security are issues not raised in this appeal and, since they are not jurisdictional, I do not believe we may raise them sua sponte.


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