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STEGMAIER GOLD MEDAL BEER & ATLANTIC MUTUAL INSURANCE COMPANY v. WORKMEN'S COMPENSATION APPEAL BOARD (TUMINSKI) (08/19/88)

decided: August 19, 1988.

STEGMAIER GOLD MEDAL BEER & ATLANTIC MUTUAL INSURANCE COMPANY, APPELLANTS
v.
WORKMEN'S COMPENSATION APPEAL BOARD (TUMINSKI), APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of In Re: Frank Tuminski, Claimant v. Stegmaier Gold Medal Beer and Commonwealth of Pennsylvania, Co-Defendant Department of Labor and Industry, No. 1055-C of 1987, dated June 11, 1987.

COUNSEL

Ralph J. Johnston, Jr., Harris & Johnston, for petitioners.

Joseph C. Giebus, for appellee, Frank Tuminski.

Judges Barry and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 42]

Stegmaier Gold Medal Beer (employer) and Atlantic Mutual Insurance Company (carrier) appeal from an order of the Court of Common Pleas of Luzerne County dismissing employer's appeal from an order of the Workmen's Compensation Appeal Board (Board) affirming the decision of the referee to grant the petition of Frank Tuminski (claimant) for compensation under the Occupational Disease Act (Act), Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., on the basis that it had failed to file its brief in compliance with subsection (h) of Local Rule of Court 270 (Rule 270).

On March 22, 1979, claimant filed his petition for compensation under the Act. In it, he alleged that he was totally disabled as the result of silicosis. The referee

[ 119 Pa. Commw. Page 43]

    granted this petition on December 13, 1981, with compensation to commence on March 16, 1979 and to continue thereafter. Employer then filed a timely appeal to the Board, which reversed the referee's decision and dismissed the claimant's petition. Claimant thereafter appealed to the Court of Common Pleas of Luzerne County. The Honorable Patrick J. Toole, Jr., after briefing and argument, remanded the matter to the Board so that it could remand it to the referee. The referee, on remand, again ruled in favor of the claimant. Employer filed a timely appeal to the Board from the decision. This time, the Board affirmed the decision of the referee. Employer then filed a timely appeal to the Court of Common Pleas of Luzerne County from that order on March 11, 1987. At the time it filed its notice of appeal, it also filed its exceptions to the Board's order.

Subsequent to the filing of this appeal, claimant submitted a petition to dismiss the appeal on the basis that the employer had failed to file its brief in support of its exceptions either simultaneously with his appeal or within thirty days thereafter as, claimant contended, subsection (h) of Local Rule 270 required. Employer filed an answer to the petition, in which it contended that subsection (h) of Rule 270 did not govern an action commenced after the effective date of the rule, that appeals from administrative agencies could not be scheduled for argument with the Court Administrator until the record had been lodged by the administrative agency in response to the writ of certiorari issued by the prothonotary and that subsection (h) of Rule 270 did not govern an appeal from an administrative agency. The Honorable Gifford R. Cappellini entered an order on July 11, 1987 dismissing the employer's appeal. This appeal followed.

The employer argues that the trial court erred in construing subsection (h) of Rule 270 to require it to file

[ 119 Pa. Commw. Page 44]

    a brief in support of its exceptions to the Board's order either simultaneously with the filing of its notice of appeal or within thirty days thereafter. It further argues that, in the event that subsection (h) of Rule 270 does govern its appeal, that the provision for automatic dismissal contained ...


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