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CROWN v. WORKMEN'S COMPENSATION APPEAL BOARD (SAVINI) (06/23/88)

decided: June 23, 1988.

CROWN, CORK AND SEAL CORPORATION, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (SAVINI), RESPONDENTS. CARLO SAVINI, DECEASED, MARY SAVINI, WIDOW, PETITIONER V. WORKMEN'S COMPENSATION APPEAL BOARD (CROWN, CORK & SEAL AND INSURANCE COMPANY OF NORTH AMERICA), RESPONDENTS



Appeals from the Order of the Workmen's Compensation Appeal board in the case of Carlo Savini, Dec'd, Mary Savini, widow v. Crown, Cork & Seal, No. A-89683.

COUNSEL

Thomas C. Lowry, Swartz, Campbell & Detweiler, for petitioner, Crown, Cork & Seal Corporation.

John J. Duffy, III, with him, Donald J.P. Sweeney, Bernard E. Kueny, III, Sweeney, Sheehan & Spencer, for respondent, Savini.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.

Author: Narick

[ 117 Pa. Commw. Page 243]

Crown, Cork and Seal, Inc. (Employer) initiated this workmen's compensation proceeding by filing a termination petition on June 28, 1978, alleging that the work-related injury Carlo Savini (Claimant) had sustained on January 11, 1978 had terminated as of June 9, 1978, the date he was examined by Employer's physician. During the pendency of that proceeding, Claimant suffered a fatal heart attack. His widow filed a fatal claim petition alleging that the work-related injury was a substantial contributing factor to his death. Both petitions were consolidated for hearings before a workers' compensation referee, who issued separate decisions denying the termination petition (March 26, 1982) and granting the fatal claim petition (March 30, 1982).

[ 117 Pa. Commw. Page 244]

Employer filed a timely appeal of the denial of its termination petition. Because its attorney had not received notice of the award on the fatal claim petition, which had been mailed to the wrong address, it sought and was ultimately granted permission to file a nunc pro tunc appeal.

On appeal to the Workmen's Compensation Appeal Board (Board), it was discovered that the transcript from one of the referee's hearings was missing. The Board remanded on June 3, 1983, directing that the missing testimony be transcribed, or, if unavailable, be recreated. Because the transcript was not available and the reporter could apparently not be located, the parties redeposed the witnesses, Claimant's physician, Dr. Faires, Employer's physician, Dr. Blaker, and Claimant's daughter, Jennie Savini. The referee forwarded the recreated testimony to the Board, which, on March 12, 1987, allowed the nunc pro tunc appeal and affirmed both decisions.

Cross appeals are before us presently for disposition. Employer has appealed, alleging various procedural and substantive errors. Claimant's*fn1 cross appeal seeks to have Employer's appeal dismissed for failure to appeal from the Board's remand order and disputes the propriety of the Board's allowance of Employer's nunc pro tunc appeal. We shall first address the latter two issues.

Claimant contends that, because the Board's remand order was for the limited purpose of recreating lost testimony, Employer was obligated to appeal from that order if it wished to have additional testimony considered. (Employer's assertions on this point are considered below). This argument ignores the long-standing rule

[ 117 Pa. Commw. Page 245]

    that remand orders are interlocutory in nature and unappealable as a matter of right. See Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commonwealth Ct. 214, 414 A.2d 161 (1980). This Court recently considered and rejected a similar argument in Budd Trailer Company v. Workmen's Compensation Appeal Board (Behney), 105 Pa. Commonwealth Ct. 258, 524 A.2d 525 (1987), reaffirming the Murhon rule, and we shall do so here.

Claimant's second allegation of error is that the Board improperly allowed Employer's nunc pro tunc appeal of the referee's award on the fatal claim petition because, while it is undisputed that the notice of the referee's decision was addressed to Employer's attorney's former address, correctly addressed copies were mailed to Employer and its insurance carrier. Employer, in its petition for allowance of appeal nunc pro tunc, avers that neither its counsel nor its insurance carrier received notice of the decision. The Board noted that the insurance carrier's address was correctly listed on the cover page of the award, but nonetheless granted the petition, ...


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