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May 15, 1997


Appealed From No. A94-3727. State Agency Workmen's Compensation Appeal Board.

Before: Honorable James Gardner Colins, President Judge, Honorable Doris A. Smith, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Senior Judge Silvestri.

The opinion of the court was delivered by: Silvestri



Filed: May 15, 1997

P.R. Hoffman Materials (Employer) petitions for review of an order of the Workers' Compensation Appeal Board (Board) that affirmed the decision of the Worker's Compensation Judge (WCJ) granting benefits to Mary Jane Zeigler (Claimant) and remanded to the WCJ for a determination of the amount of penalties on her penalty petition which she filed with the Board during the pendency of the Employer's appeal challenging the WCJ's award of benefits.

The facts are not in dispute and are summarized as follows. Claimant last worked for Employer on December 19, 1991. Claimant filed a claim petition on July 29, 1992 alleging that she was disabled as the result of a work-related psychological injury which the Employer denied by answer filed. Several hearings were conducted before the WCJ who, after determining that several work-related incidents constituted abnormal working conditions, concluded that Claimant was eligible for benefits. By decision and order circulated on November 9, 1994, the WCJ ordered the Employer to pay Claimant, with interest, compensation benefits for full-disability beginning January 6, 1992; the WCJ also ordered the Employer to pay all outstanding and future medical bills associated with the claim as well as Claimant's costs of litigation.

On November 29, 1994, the Employer appealed the WCJ's decision to the Board and filed a request for supersedeas which was denied by the Board on December 13, 1994. On January 24, 1995, while Employer's appeal was pending, Claimant filed with the Board a penalty petition alleging that Employer had not yet complied with the order of the WCJ awarding benefits. On March 22, 1995, the Board heard oral argument on both the Employer's appeal from the WCJ's award of benefits and the Claimant's penalty petition. The Board concluded that Claimant sustained her burden of proving that her psychological injury was other than a subjective reaction to normal working conditions. The Board also concluded that penalties were due because the Employer had not paid Claimant benefits after its request for a supersedeas had been denied. By order of May 30, 1996, the Board affirmed the decision of the WCJ with regard to the granting of benefits and "remanded to the WCJ on the penalty calculation only."

On July 1, 1996, Employer filed a petition for review to this Court. *fn1 On January 9, 1997, this Court, relying on FMC Corp. v. Workmen's Compensation Appeal Board (Wadatz), 116 Pa. Commw. 527, 542 A.2d 616 (Pa. Commw. 1988) and Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commw. 214, 414 A.2d 161 (Pa. Commw. 1980), dismissed the petition for review after having concluded that the Board's order was interlocutory and not within the exception to the finality requirement found in Pennsylvania Rule of Appellate Procedure 331(f), Pa. R.A.P. 311(f). Employer filed an application for reargument which was granted on February 13, 1997; both parties were directed to file separate briefs on the issue of the appealability of an order that disposes of one petition but remands for consideration of a second petition. The appealability issue and the merits of the petition for review were jointly argued before this Court on April 10, 1997.

With respect to the appealability issue *fn2, the Employer concedes that, on its face, the order appealed to this Court is interlocutory. An appeal may be taken as of right from any final order of an administrative agency. Pa. R.A.P. 341(a). A "final order" is any order that: 1) disposes of all claims or of all parties; or 2) is expressly defined as a final order by statute. Pa. R.A.P. 341(b). Where more than one claim for relief is presented in an action, an administrative agency may enter a final order as to one or more but fewer than all of the claims but only upon an express determination that an immediate appeal would facilitate resolution of the entire case; such an order becomes appealable when entered. Pa. R.A.P. 341(b)(3) and 341(c). There is no question that the Board's order herein does not meet the definition of a final order as set forth in Pa. R.A.P. 341.

Even though interlocutory in nature, an order directing an administrative remand is appealable as of right where the remanded matter does not require the exercise of administrative discretion. Pa. R.A.P. 311(f). *fn3 The Board's order herein remanded to the WCJ for "the penalty calculation only." This Court has held that the determination of the amount of a penalty requires the exercise of discretion. Glinka v. Workmen's Compensation Appeal Board (Sears Roebuck and Company), 75 Pa. Commw. 504, 462 A.2d 909 (Pa. Commw. 1983). *fn4 Thus, the Board's order herein is not appealable under Pa. R.A.P. 311(f).

The Employer argues that Board's order is appealable pursuant to Section 702(b) of the Judicial Code which governs interlocutory appeals by permission and provides as herein relevant:

When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order. (Emphasis added).

42 Pa. C.S. ยง 702(b). The Board herein, however, makes no such determination in its order. Thus, the Employer's reliance on Section 702(b) of the Judicial ...

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