Larocca v. W.C.A.B. (Pittsburgh Press)

• Decision Date: 31 May 1991
• Citation: 592 A.2d 757,140 Pa.Cmwlth. 192
• Parties: Margaret LAROCCA, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (THE PITTSBURGH PRESS), Respondent.
• Court: Pennsylvania Commonwealth Court

Page 757

592 A.2d 757

140 Pa.Cmwlth. 192

Margaret LAROCCA, Petitioner, v. WORKMEN'S COMPENSATION APPEAL BOARD (THE PITTSBURGH PRESS) Respondent.

Commonwealth Court of Pennsylvania.

Argued Feb. 13, 1991.

Decided May 31, 1991.

[140 Pa.Cmwlth. 195] Theodore E. Breault, Pittsburgh, for petitioner.

Pamela G. Cochenour, Pittsburgh, for respondent.

Before CRAIG, President Judge, and DOYLE, McGINLEY, SMITH, PELLEGRINI, KELLEY and BYER, JJ.

KELLEY, Judge.

Margaret Larocca (claimant) appeals an order of the Workmen's Compensation Appeal Board affirming a decision of a referee which granted the termination petition of The Pittsburgh Press (employer) and denied claimant's petition for total disability.

Claimant suffered a work-related aggravation of pre-existing cervical degenerative arthritis on September 3, 1981, and began to receive partial disability benefits. These benefits were suspended by a referee's order of July 5, 1983, based on a finding that claimant continued to work without a loss in earnings. On December 28, 1987, claimant filed a petition for review asserting that, as of November 25, 1987, her disability had become total. Employer filed a termination petition, alleging that claimant had fully recovered from the September 3, 1981 injury and requesting that the suspension be lifted and benefits terminated.

A hearing on both petitions was held, and the referee, accepting the testimony of employer's medical expert, dismissed claimant's petition for total disability and granted employer's termination petition in an order dated March 22, 1989. Claimant appealed to the board which affirmed the referee's order on December 7, 1989.

Claimant, proceeding pro se, then attempted to appeal the board's decision. In a letter to this Court dated December 30, 1989, she explained that she was unfamiliar with how to handle the appeal, and had received no assistance from workmen's compensation offices, either in Pittsburgh or Harrisburg. She tried unsuccessfully to contact the Court by phone, and eventually resorted to calling the Governor's Hot Line, who referred her to the Court's filing office. The letter, date stamped January 4, 1990, requested "the necessary forms and information needed ... to file an appeal before the Commonwealth Court."

The chief clerk responded by letter dated January 5, 1990 and pursuant to Section 211 of this Court's Internal Operating Procedures, 210 Pa.Code § 67.13, which states Petition for Review--Clarification.

Upon receipt by the chief clerk from a pro se party of a written communication which evidences an intention to appeal, the chief clerk shall timestamp the writing with the date of receipt. The chief clerk shall advise the party by letter:

(1) As to the procedures necessary to perfect the appeal.

(2) That the date of receipt of the pro se communication will be preserved as the date of filing of the appeal, on condition that the party files a proper petition for review within 30 days of the date of the letter from the chief clerk. If the party fails to file a proper petition for review within that period, the chief clerk shall advise the party by letter that the court will take no further action in the matter.

Claimant, now represented by counsel, filed her petition for review on February 5, 1990. Employer responded with a motion to quash the appeal, arguing that § 211 has the effect of enlarging the time for appeal, which is expressly prohibited by Pa.R.A.P. 105(b) and inconsistent with Pa.R.A.P. 1512.

RECONSIDERATION OF ORDER OF SINGLE JUDGE

Before considering the merits of employer's timeliness claim, however, we must first decide whether the issue is properly before us.

Employer's motion to quash was denied on May 21, 1990, by order of Senior Judge Lehman. Employer did not seek reconsideration of that order, but instead proceeded to brief and argue the issue before an en banc panel of this Court, along with the merits of the case. We have held that:

It is a general rule that it is improper for a trial judge, absent new evidence, to overrule an interlocutory order by another judge of the same court in the same case. Commonwealth v. Tyson, 57 Pa.Commonwealth Ct. 569, 427 A.2d 283 (1981). We adopt the same rule with regard to pre-argument applications filed with this Court. In the interest of judicial economy and efficiency there must be a degree of finality to determinations on pre-argument motions. See Commonwealth v. Eck, 272 Pa.Superior Ct. 406, 416 A.2d 520 (1979).

Vitale v. Zoning Hearing Board of Upper Darby Township, 63 Pa.Commonwealth Ct. 604, 607, 438 A.2d 1016, 1018 (1982). ¹

This doctrine, known as the "law of the case," has been discussed by our Supreme Court, which has stated that:

The rule of the "law of the case" is one largely of convenience and public policy, both of which are served by stability in judicial decisions, and it must be accommodated to the needs of justice by the discriminating exercise of judicial power. Thus ... where a prior decision is palpably erroneous, it is competent for the court, not as a matter of right but of grace, to correct it upon a second review where no wrong or injustice will result thereby....

Reamer's Estate, 331 Pa. 117, 122-23, 200 A. 35, 37 (1938).

We do not view Judge Lehman's order as being "palpably erroneous," and intend to adhere to the policy announced in Vitale. Pa.R.A.P. 123(e) provides that a single judge of an appellate court may "grant or deny any request for relief which under these rules may properly be sought by application...." It further provides that "[t]he action of a single judge may be reviewed by the court." (Emphasis added.) We have provided a mechanism for this review by means of a petition for reconsideration. See Internal Operating Procedures, § 331, 210 Pa.Code § 67.47. When, as here, no petition for reconsideration from an order of a single judge has been filed, that order will normally be considered binding. Due to the importance of the issue involved here, however, we feel that the interest of judicial economy would be best served by squarely addressing it, despite the procedural irregularity.

VALIDITY OF INTERNAL OPERATING PROCEDURES, SECTION 211

Employer contends that this Court is without jurisdiction to consider this appeal, arguing that a timely petition for review was not filed, and the time for filing a petition for review is jurisdictional. Section 211, it is contended, is invalid because it operates to impermissibly extend the time for appeal.

The Internal Operating Procedures, including § 211, were adopted by the Commonwealth Court pursuant to its rule making authority expressed in Pa.R.A.P. 104. This authority is not unlimited. Specifically, the Court is prohibited from making any rule enlarging the time for filing a notice of appeal, a petition for allowance of appeal, a petition for permission to appeal, or a petition for review. Pa.R.A.P. 105(b). A petition for review from an appealable quasijudicial order must be filed within 30 days after the entry of the order. Pa.R.A.P. 1512(a)(1).

Employer points out that claimant's pro se communication cannot be treated as a petition for review, since it does not contain the elements specified in Pa.R.A.P. 1513. These include a general statement of the objections to the order, or other determination sought to be reviewed, and a short statement of the relief sought. Because claimant's pro se communication did not contain these elements, employer maintains that it cannot be treated as a petition for review and, since no proper petition for review was filed within the 30-day period, the case must be dismissed.

Claimant argues that the pro se communication "substantially complied" with Pa.R.A.P. 1513 by including all of the other elements required, including identification of the agency appealed from, the date of the decision and order, the order itself, the parties as they stood upon the record below, and the docket number of the decision and order from which the appeal was taken. We cannot agree. The statement of objections to the governmental determination has been held to constitute the "heart" of the petition for review, and, without it, no issue has been preserved for appellate review. See Hawkey v. Workmen's Compensation Appeal Board, 56 Pa.Commonwealth Ct. 379, 425 A.2d 40 (1981).

This finding, however, does not end the inquiry. Section 211 provides that a written communication by a pro se party, which evidences an intention to appeal, will suffice to preserve the date of filing, provided that a proper petition for review is filed within 30 days of the date of the letter from the chief clerk. It is this provision which we must examine to determine whether it violates Pa.R.A.P. 105(b).

We begin by noting that the prohibition against the enlargement of time found in Pa.R.A.P. 105(b) applies to four distinct situations. Two of these, a petition for allowance of appeal and a petition for permission to appeal, are by their very nature discretionary, and strict limitations on both the time for appeal and the requisite contents of the documents filed do not deprive the appellant of any right.

Rule 105(b) also applies to a notice of appeal and a petition for review, both involving appeals as of right, and thereby implicating constitutional protections. ² Our courts have strictly construed Rule 105(b) as it applies to a notice of appeal, holding that if the notice is not filed within the thirty-day period, the appeal is untimely and must be quashed. See, e.g., Commonwealth v. Riebow, 299 Pa.Superior Ct. 458, 445 A.2d 1219 (1982); State Farm Mutual Insurance v. Schultz, 281 Pa.Superior Ct. 212, 421 A.2d 1224 (1980).

These cases, however, are distinguishable from the situation before us. When nothing evidencing an intent to appeal is filed within the statutory period, the appeal is not timely and must be quashed, absent a showing of circumstances meriting grant of an appeal nunc pro tunc. Here, however, claimant did...