
    Robinson, Appellant, v. Y.W.C.A. et al., Appellants.
    
      Argued December 13,1967.
    Before Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent).
    
      Edward I. Weisberg, with him Alan K. Silberstein and David N. Feldman, for claimant.
    
      Frederick W. Anton, III, with him Paul E. Ferguson, for defendants.
    March 20, 1968:
   Opinion by

Watkins, J.,

These are cross appeals in a workmen’s compensation case by Henry Robinson, the claimant-appellant, from the order of the Court of Common Pleas No. 4 of Philadelphia County that affirmed the decision of the Workmen’s Compensation Board denying compensation benefits to him; and an appeal by the defendants, the Y.W.C.A. and Pennsylvania Manufacturers’ Assn. Insurance Company from the decision of the court below denying their motion to quash the appeal of the claimant from the Workmen’s Compensation Board.

The claimant filed a petition seeking compensation for an accident that occurred on the sidewalk fronting the defendant’s property while on his way to report for work. The fall caused a fracture of his right femur. The defense raised was that the injury did not occur in the course of his employment. The referee awarded benefits; the board reversed and found as a fact that the accident “did not occur on the premises owned or under the control of the defendant”.

The claimant appealed to the Court of Common Pleas and filed the required exceptions within the statutory period. Judge Sloane of the court below remanded the case to the workmen’s compensation authorities, holding:

“The record does not support substituted Finding of Fact No. 7 made by the Workmen’s Compensation Board.
“The record is bare of any showing whether Y.W.C.A. owned, leased or controlled that portion of the paved area abutting the Y.W.C.A. Building on which claimant fell.
“This case is remanded to the Board to take further testimony and make appropriate Findings of Fact and Conclusions of Law on whether or not claimant was on the premises owned, leased or controlled by Y.W.C.A.”.

The board referred the case to the referee in accordance with the order of the court with the following direction:

“The referee will therefore give both counsel the opportunity to present evidence as ordered by the Court and, upon completion thereof certify the record back to the Board for substituted findings and conclusions.
“All findings of fact and conclusions of law are set aside.”

After having the benefit of the additional testimony the Board reaffirmed the findings of fact and conclusions of law as set forth in their original order and denied compensation. The Board found as a fact that the accident did not occur on the premises owned or under the control of the defendant and concluded that he was not in the course of his employment at the time of the accident.

The claimant appealed from the decision of the Board to the Court of Common Pleas to a new number and term; and the defendants filed a motion to quash the appeal on the ground that the claimant had failed to file exceptions as required by the Workmen’s Compensation Law. Counsel for the claimant and counsel for the defendant stipulated that the only question involved in the defendants’ appeal was whether the lower court’s failure to quash was error. The court below denied the motion to quash and affirmed the Board in denying benefits. The defendants appealed from the decision of the court below refusing to quash the appeal; the claimant appealed from the denial of benefits.

It is apparent that if the court below erred in not dismissing the appeal it did not acquire jurisdiction, and then any discussion of the merits is without purpose.

Section 427 of the Workmen’s Compensation Act of June 2, 1915, P. L. 736, as amended, Act of May 27, 1943, P. L. 691, §1, 77 PS §874, provides, inter alia: “The party taking the appeal shall, at the time of taking the appeal, serve upon the adverse party a written notice thereof, . . . and shall file, either with his notice of appeal, or within thirty days thereafter, such exceptions to the action of the board as he may desire to take, . . .”. This Court has held that exceptions must be filed within the required time limit before the Court of Common Pleas may acquire jurisdiction. Miles v. Master, 374 Pa. 127, 97 A. 2d 36 (1953); Thomas v. J. J. Skelly, Inc., 204 Pa. Superior Ct. 166, 203 A. 2d 339 (1964).

The Act of June 2, 1915, P. L. 736, Art. IV, §427, as amended, Act of May 27, 1943, P. L. 691, §1, 77 PS §§877, 879, reads as follows:

“§877. Remission of record to board for amplification
“Any court before whom an appeal is pending from any action of the board may remit the record to the board for more specific findings of fact, if the findings of the board or referee are not, in its opinion, sufficient to enable it to decide the question of law raised by the appeal.”
“§879. Reversal of findings of board; remission of record to board for further hearing
“If such court shall sustain the appellant’s exceptions to a finding or findings of fact and reverse the action of the board founded thereon, the court shall remit the record to the board for further hearing and determination, in which the procedure shall be the same as that hereinbefore provided in this article in the case of a petition presented to the board, except that the testimony taken in the original proceedings shall be considered as though taken in such further hearing.”

This Court in Diaz v. Jones and Laughlin Steel Corp., 170 Pa. Superior Ct. 608, 616, 88 A. 2d 801 (1952), explained the distinction between these two sections of the Act as follows: “The distinction between the two provisions of the statute is clearly pointed out in Driscoll v. McAlister Brothers, Inc., 294 Pa. 169, 144 A. 89. Had the record been remitted in accordance with the second provision of §427, it would have gone ‘back to the board for further hearing and determination. as though on an original petition, Lettrich v. Allegheny Steel Co., 149 Pa. Superior Ct. 660, 664, 27 A. 2d 257, as contended by appellant. But, as we have pointed out, it went back under the first provision of §427 for more specific findings of fact in order to enable the Court of Common Pleas to decide the question of law raised by the appeal. The board, therefore, was entirely right in deciding ‘that the referee was in error in concluding, as a matter of law, that claimant was not entitled to compensation, and in entering an order of dismissal, for the reason that the sole duty of the referee was to make findings of fact pursuant to the order of the Court of Common Pleas 9 99

A close examination of the remand order by Judge Sloane clearly called for a new hearing and redetermination of the case. He directed “the Board to take further testimony and make appropriate Findings of Fact and Conclusions of Law”. The direction to make conclusions of law is a direction to the Board to redetermine the result in the case, if supported by new evidence. It constituted a reversal of finding of fact No. 7 as made by the Workmen’s Compensation Board. In Groner v. Board of Public Education of Pittsburgh, 152 Pa. Superior Ct. 381, 33 A. 2d 271 (1943), the court below entered the following order of remand: “And now, this 15th day of November, 1939, the record in this case is returned to the Workmen’s Compensation Board for findings of fact on the disputed questions involved in the second hearing and for a final adjudication in accordance with all findings in the case.” This Court held that under this order a new appeal was necessary from any action of the Board if the matter was to be again reviewed by the Common Pleas Court.

Under the order of the Common Pleas court in the instant case the entire case went back to the Board as though on original petition. The court held that the record did not support finding of fact No. 7 made by the Workmen’s Compensation Board. This was a reversal of a finding and a direction to hold a new hearing and make a final adjudication in accordance with all the findings of fact and conclusions of law then made in the case. It was, therefore, an order of remand based on the second provision of §427 of the Workmen’s Compensation Act, 77 PS §879. A new appeal was required and in fact a new appeal to a different term and number was filed. The failure to file exceptions within the period required after the taking of the new appeal is a fatal defect so that the court below did not acquire jurisdiction.

The appeal of claimant is quashed and the order of the Workmen’s Compensation Board is reinstated.

Dissenting Opinion by

Hoffman, J.:

If a case is remanded to the Board under the second section of §427 ( 77 P.S. §879), there is no dispute that a new appeal from the Board’s action is required to authorize review. In such an instance, exceptions must be filed within 30 days after notice of the new appeal. Groner v. Board of Public Education of City of Pittsburgh, 152 Pa. Superior Ct. 381, 33 A. 2d 271 (1943). On the other hand, where a court remits a record to the Board for more specific findings of fact under the first section of §427 (77 P.S. §877), a new appeal is not required. Therefore, no new exceptions need be filed in order to perfect the appeal. Groner v. Board of Public Education of City of Pittsburgh, supra; Skinner, Workmen’s Compensation Law, 881.

The majority holds that the remand order in the instant case was under the second section of §427, and, therefore, quashes the appeal because exceptions were not filed within 30 days after notice of appeal was filed. I disagree.

In the ease at bar, it is my opinion that the lower court remanded this case to the Board for an amplification of the record pursuant to the first section of §427. It carefully noted in a memorandum opinion and an opinion filed under Rule 46 of the Superior Court that further testimony and evidence was required before the court could properly consider the legal question of whether the claimant was on the “premises” of his employer at the time of his fall. See Giallonardo v. St. Joseph’s College, 177 Pa. Superior Ct. 87, 111 A. 2d 178 (1955). In its memorandum opinion of July 6, 1964, the lower court stated, “The record is bare of any showing whether Y.W.C.A. owned, leased or controlled that portion of the paved area abutting the Y.W.C.A. Building on which claimant fell.” In its opinion filed pursuant to Rule 46, the court stated that the remand to the Board was for “additional testimony” and “further evidence” which it deemed essential to the resolution of the legal question here involved. The court again stated that the record was bare of any showing of control of the strip where Robinson fell, and concluded: “We remanded for evidence to answer these questions [as to control] intelligently and competently.”

It is also important to note that the lower court did not reverse a decision by the Board, which is required for application of the second section of §427. The court specifically stated: “We did not affirm an award; we did not deny an award; we did not modify an award; we made no definitive order; we did not conclude the litigation.” [Emphasis added]

Another indication that the case was remanded for additional evidence only is that our Court quashed an appeal from the remand order of the lower court. A remission to the Board for further findings of fact prevents a judgment from being final and appealable. Such au appeal is interlocutory. See Cohen v. Doubleday & Company, Inc., 191 Pa. Superior Ct. 106, 155 A. 2d 378 (1959). Since we quashed defendant’s appeal, the direct inference is that the lower court did not affirm or reverse the Board, but rather, sent the record back for further testimony.

The fact that the phrase “and conclusions of law” is found in the memorandum opinion of July 6, 1964, is of no consequence. The entire context of the two opinions filed by the lower court denotes that it remitted the record for specific findings of fact, which were clearly denominated in the opinion filed pursuant to Bule 46. Thus, it is my view that the Board’s poAver was limited to finding those specific facts and to return the record to the lower court where the appeal was still pending, rather than re-determining the entire case.

In summary, only where the court reverses a finding of the Board and remands “for the purpose of further proceedings not inconsistent with this opinion” does the second section of §427 become operative. Skinner, Workmen’s Compensation Law, p. 884. In such cases, the further hearing is not limited to one question and is treated as though on an original petition. Lettrich v. Allegheny Steel Co., 149 Pa. Superior Ct. 660, 27 A. 2d 257 (1942). Here, however, the record was remanded for a determination of a single issue which Avas necessary in order to permit the lower court to adequately review the record and determine the legal issue involved. It was error, in my opinion, for the Board and the majority to construe these instructions otherwise. Accord, Flock v. Pittsburgh Terminal Coal Corp., 140 Pa. Superior Ct. 232, 13 A. 2d 881 (1940).

Consequently, I would affirm the lower court’s order denying defendant’s motion to quash this appeal.

Spaulding, J., joins in this dissent. 
      
       “This sidewalk where Robinson fell — is it completely public? Is it part of the premises of YWCA? Is it under the control of YWCA? We made note of photographs in the Board’s record showing enclosed pleasanee-approaches of the adjoining houses. Could YWCA make the same enclosure? We have no ready knowledge of the primary matter in this case from the present record: The Board’s record is bare of any showing of control or lack of control, ownership or non-ownership of the strip of land where Robinson fell.”
     
      
       I wish to further note that the present case should not have been before us because the Buies of Civil Procedure of Philadelphia County were not properly followed. Buie *26(c) states: “(c) Whenever an appeal is taken from a decision of the Workmen’s Compensation Board to the Court of Common Pleas and the record is returned by the court to the board for further proceedings, and an appeal from the board is again taken in the same case, the court to which the first appeal was assigned, and the term and number thereof, shall be set forth in the notice of such subsequent appeal filed with the prothonotary, and the prothonotary shall assign it to the court to which the first appeal was assigned.” The Bule has been amended since the appeal in this case was taken to provide that the Administrative Judge, rather than the prothonotary, make the assignment to the Judge originally assigned the case.
      Attorney for claimant file,d an appeal on July 1, 1966, but did not note that it was a re-appeal of the same case. Thus, the prothonotary of the Court of Common Pleas gave the case a new court term and number when the second appeal was filed, and assigned the case to Judge Beed, rather than to Judge Sloane, who had originally remitted the record for further proceedings. Consequently, the Buie quoted above was not followed.
      It is evident that a major purpose of the Buie is to permit the remitting judge to determine whether the Board acted in accordance with his order. This is true because the remitting judge is already acquainted with the nuances of the issues involved. Accordingly, it is my opinion, that it was in error for the second trial judge to hear the case.
      Since this case was given a new term and number and assigned to a new judge, attorney for claimant apparently filed the belated exceptions in the belief that this constituted a de novo appeal. It is important to note that identical exceptions were filed in both appeals, which suggests that counsel did so perfunctorily only because a new judge and term number became involved. Moreover, that a new court term and number were assigned constituted merely an administrative lapse and is neither controlling nor persuasive in determining the character of the second proceeding in the Court of Common Pleas.
      The parties here have had the opportunity to argue this case fully before Judge Reed, and it would be unwise and unfair to remit this case for yet another hearing to Judge Sloane. Nonetheless, counsel and court should, in the future, carefully consider the local procedural rules to avoid any such further confusions.
     