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PENN WINDOW & OFFICE CLEANING CO. v. WORKMEN'S COMPENSATION APPEAL BOARD (PEARSALL) (11/22/88)

decided: November 22, 1988.

PENN WINDOW & OFFICE CLEANING CO., PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (PEARSALL), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of George Pearsall v. Penn Window Cleaning, No. A-92828.

COUNSEL

Edward D. Klym, Trushel, Klym & Asti, for petitioner.

Michael A. Johnson, for respondent, George Pearsall.

Judges Barry and Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Senior Judge Barbieri.

Author: Barbieri

[ 121 Pa. Commw. Page 249]

Penn Window & Office Cleaning Company, Petitioner, Employer in this workmen's compensation case, seeks review here of a Workmen's Compensation Appeal Board (Board) order, reversing a supersesdeas order of a referee and assessing a penalty of twenty percent (20%) pursuant to the provisions of Section 435(d)(i) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. ยง 991.

George Pearsall, Claimant, was receiving total disability benefits for an injury suffered in the course of his employment with Petitioner on December 1, 1984; bi-weekly compensation payments initially sent by mail to his address at the time of the injury, 143 East Stuben Street, Pittsburgh, Pennsylvania. Shortly after suffering his work injuries and disability, Claimant moved to 527 Main Street, Latrobe, Pennsylvania, to which new address Employer's insurer began sending benefit checks

[ 121 Pa. Commw. Page 250]

    and continued to do so for a period of approximately one year.

On February 27, 1986, Employer's insurer filed a petition for termination, but listing Claimant's address incorrectly at the 143 East Stuben Street, Claimant's former address in Pittsburgh, so that he failed to receive notice and, therefore, was absent from an ex parte hearing on May 5, 1986, attended only by Employer's counsel. At that hearing the referee issued an oral supersedeas order from the bench, suspending Claimant's compensation. Apparently, no notice of this order was ever sent to Claimant. When he learned of the cessation of benefit payments, he filed a Petition for Reinstatement including therein a statement requesting recision of the oral supersedeas order and reinstatement of his benefits. He also filed with the Board an appeal nunc pro tunc with regard to the supersedeas order.

Subsequently, at a conference before the referee when a hearing was scheduled on Claimant's Petition for Reinstatement, August 14, 1986, it was agreed that the record, closed "on the Termination Petition on 5/5/86 . . . would be reopened as to the Termination Petition."*fn1 R.R. at 18a.

After a hearing before the Board on Claimant's appeal nunc pro tunc, the issue as to the validity of the referee's oral supersedeas order of May 5, 1986 was reviewed by the Board. In an opinion dated November 14, 1986, Commissioner Robert P. Fohl stated:

Chairman Fergus opined, for the benefit of the Defendant, that it was his understanding and belief that an oral order granting Supersedeas was invalid and that the Defendant was putting himself at risk for the stoppage of compensation

[ 121 Pa. Commw. Page 251]

    payments without a valid order.*fn2 Our subsequent research indicates that such is precisely the case. In Commonwealth of Pennsylvania v. W.C.A.B., 469 A.2d 705 (1984), the Commonwealth Court held that a Referee's grant of oral supersedeas is a nullity and that the employer's request for supersedeas should be treated as if it had been denied. The Court further cited Section 418*fn3 of the Act requiring that all orders entered by a Referee on petitions assigned to him for hearing be made in writing. In M. A. Bruder & Son, Inc. vs. W.C.A.B., 485 A.2d 93 (1984), the Court further held that a 'retroactive supersedeas' granted by a Referee was properly repudiated by the Board. In this case the Court also held that the employer's unjustified, unilateral withholding of benefits was a violation of the Act and triggered the penalty provision.

In any event, we shall dismiss the Appeal as we conclude that there has been no valid action by the Referee which could be appealed. Claimant's Appeal concerns a Supersedeas Order which we conclude simply does not exist.

R.R. at 18a-19a.

Following this decision of the Board, the referee issued an order dated December 9, 1986, termed an "Interlocutory Order," as follows:

At the hearing on May 5, 1986, a supersedeas was verbally granted, and that ruling is hereby ...


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