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TOWNSHIP NEWTOWN v. WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS NEWBY (05/26/83)

decided: May 26, 1983.

TOWNSHIP OF NEWTOWN, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (THOMAS NEWBY, III), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Thomas Newby, III v. Township of Newtown, No. A-81175.

COUNSEL

John P. Knox, with him David R. Weyl, Timoney, Knox, Hasson & Weand, for petitioner.

Leonard V. Tenaglia, with him Michael A. Paul and Howard Richard, Richard, DiSanti, Hamilton, Gallagher & Paul, for respondent, Thomas Newby, III.

Judges Rogers, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 74 Pa. Commw. Page 475]

The claimant in this workmen's compensation case filed a claim petition for disability resulting from a bout of angina pectoris allegedly suffered in the course of his employment on June 12, 1979. The case moved at a leisurely pace. Between August 16, 1979 and March 24, 1980, hearings were conducted at which testimony was taken. Hearings were scheduled for June 11, 1980, August 14, 1980 and October 27, 1980 but no testimony was taken at any of them. A referee awarded benefits and the Workmen's Compensation Appeal Board affirmed. The employer has appealed raising four questions, three contesting the claimant's entitlement to compensation and the fourth complaining that it, the employer, was not provided a fair hearing before the referee. Because we decide this appeal on the fourth issue, and remand the record for

[ 74 Pa. Commw. Page 476]

    further proceedings, we do not decide the three questions on the merits.

As noted, these proceedings began in June, 1979 and the last hearing was scheduled for October 27, 1980. On February 27, 1981, the employer's counsel wrote a letter to the referee, with copy to counsel for the claimant, in which, after observing that the claimant had filed proposed findings of fact, conclusions and a memorandum of law, he informed the referee that counsel for the parties had "been exploring avenues for an amicable disposition" of the case and that he "would appreciate, very much, having one month from now" to prepare his proposed findings, conclusions and memorandum. The closing paragraph of the letter is as follows:

Accordingly I will have my findings, etc. either on or before the end of March, 1981. If we have some other disposition of the case in the meantime, we will, of course, be in touch with you.

The date on which the claimant's proposed findings, conclusions and memorandum were filed does not appear in the record.

Neither the referee nor the claimant's counsel responded to the letter of February 27, 1981. The asserted fact that the parties were negotiating is not denied by the claimant and there is nothing in the record or the written arguments presented to us suggesting that either the referee or claimant's counsel objected to the employer's counsel's request that he have until the end of March to file his request for proposed findings, conclusions and memorandum. Before the employer's counsel filed his findings, conclusions and memorandum ...


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