Appeal from the Order of the Commonwealth Court dated April 26, 1985, at No. 1796 C.D., 1982, reversing the Order of the Workmen's Compensation Appeal Board dated July 1, 1982, at No. A-77667.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., joins in this opinion announcing the Judgment of the Court. Flaherty, J., filed a concurring opinion in which Nix, C.j., and Hutchinson, J., joined. Hutchinson, J., filed a concurring opinion in which McDermott, J., joined. Zappala, J., concurred in the result.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
The issue before the Court in this case is whether an employer waives the defense of res judicata where that defense had not been raised in the answer to a claimant's workman's compensation claim petition.
On September 3, 1976, Leonard DeMarco, appellant, filed a claim petition for compensation benefits under § 108 of the Pennsylvania Workmen's Compensation Act (Act), 77 P.S. § 27.1, alleging that he became totally and permanently disabled on August 21, 1976, as a result of anthracosilicosis, mixed dust pneumoconiosis and pulmonary emphysema due to his exposure to deleterious gases, smoke, dust and particulate matter at his place of employment. Appellant had worked for 35 years in the seamless tube department of Jones & Laughlin Steel Corporation, appellee herein.
The referee, in denying benefits, held that appellant failed to meet the burden of proof imposed by sections 108(n) and/or 108(q) and 301(c) of the Act, 77 P.S. §§ 27.1(n), (q), and 411, in proving an occupational disease within the meaning of the Act. On appeal, the Workmen's Compensation Appeal Board (Board) affirmed, indicating that the referee's decision was supported by evidence of record. The Board further determined in its denial of appellant's request for remand on the basis of Commonwealth Court's recent decision in Plasteel Products Corporation v. Workmen's Compensation Appeal Board, 32 Pa. Commw. 405, 379 A.2d 908 (1977),*fn1 that appellant's remedy was to refile his claim with a specific averment of aggravation. Opinion of the Board at 3-4 (Apr. 6, 1978).
The Board stated in connection therewith that "[t]his averment could not be ruled res judicata, since that issue was not considered in the previous handling of the case." Id. at 4. No appeal was taken from this decision by either party.
In June of 1978, appellant filed a second claim petition for compensation benefits alleging per Plasteel, supra, that he became disabled on August 21, 1976, as a result of an aggravation of pulmonary diseases. Appellee's answer denied all material averments to the claim petition, but did not raise the defense of res judicata.
The referee found that appellant had "sustained injuries within the meaning of Sections 108(n) and 301(c)(2) of the Act." Referee's Decision at 5 (July 30, 1979). Compensation was awarded at the weekly rate of $187.00 per week beginning August 21, 1976. A timely appeal to the Board was filed by appellee, at which time appellee alleged for the first time that the referee erred as a matter of law in failing to dismiss appellant's second petition pursuant to the doctrine of "res judicata." The Board affirmed the decision of the referee, rejecting the defense of res judicata on the merits.
On appeal, Commonwealth Court reversed the decision of the Board, holding that appellee did not waive its right to raise the defense of res judicata even though the defense was not submitted to the referee and was first raised on appeal before the Board,*fn2 and that the doctrine of res judicata barred the filing of the second claim petition.
We granted allocatur on appellant's challenges to both aspects of the Commonwealth Court's decision. Because we find that appellee waived its res judicata defense by failing to assert the defense in its answer to appellant's
claim petition, we do not reach the merits of the ...