Jessieco, Inc. v. WCAB (McCutcheon) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jessieco, Inc. and Southern :
Insurance Company of :
Virginia, c/o Donegal Mutual :
Insurance Company, :
:
Petitioners :
:
v. : No. 1172 C.D. 2019
: Submitted: January 17, 2020
Workers’ Compensation Appeal :
Board (McCutcheon), :
:
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: January 6, 2021
Jessieco, Inc. and Southern Insurance Company of Virginia, c/o
Donegal Mutual Insurance Company (collectively, Petitioners) petition for review
of the order of the Workers’ Compensation Appeal Board (Board) affirming the
decision of a workers’ compensation judge (WCJ), which granted a Fatal Claim
Petition for Workers’ Compensation by Dependents of Deceased Employees (Fatal
Claim Petition) filed by Debra McCutcheon (Claimant), the widow of Joseph
McCutcheon (Decedent). We quash the appeal.
1
The decision in this case was reached before January 4, 2021, when President Judge
Leavitt served as President Judge.
On February 2, 2017, Claimant filed the Fatal Claim Petition against
Petitioners in which she alleged that Decedent suffered blunt force head trauma
that caused his death on December 19, 2014, while in the course and scope of his
employment as a general contractor. On August 16, 2018, the WCJ issued a
decision granting the Fatal Claim Petition, and the Board issued an Opinion and
Order affirming the WCJ’s decision on July 12, 2019.
The Board’s Opinion and Order included a notice to Petitioners that
stated, in relevant part:
Attached is a copy of an Opinion from the [Board] filed
this date in the above-captioned case. An appeal to the
Commonwealth Court of Pennsylvania may be taken by
any party aggrieved by the Board’s decision, provided
such appeal is taken within (30) days after the mailing
date of the Board’s decision. The Board is not
responsible for the filing or processing of further appeals
to the Court. Further appeals may be filed in person or
by mail (accompanied by U.S. Postal Services Form
3817) with the Prothonotary of the Commonwealth Court
of Pennsylvania, 601 Commonwealth Avenue, Suite
2100, P.O. Box 69185, Harrisburg, PA 17106-9185. The
Commonwealth Court may also be contacted at 717-255-
1650 with questions related to a further appeal.
Reproduced Record (R.R.) at 193a.
Instead, it appears that Petitioners’ counsel attempted to file a petition
for review of the Board’s Opinion and Order on August 8, 2019, by sending it to
the Board at the following address:
Commonwealth of Pennsylvania
Workmen’s [sic] Compensation Appeal Board
Capitol [sic] Associates Building
901 North 7th Street, Third Floor South
Harrisburg, PA 17102
Id. at 206a.
2
It further appears that on August 19, 2019, this mailing was returned
by the postal authorities to the sender with the following notation:
RETURN TO SENDER
ATTEMPTED-UNKNOWN
UNABLE TO FORWARD
RETURN TO SENDER
Id.
Presumably, Petitioners’ counsel received this returned mail and then,
on August 23, 2019, again sent a petition for review of the Board’s Opinion and
Order to the Board at the following address:
Commonwealth of Pennsylvania
Workmen’s [sic] Compensation Appeal Board
Pennsylvania Judicial Center
601 Commonwealth Ave
Harrisburg, PA 17120
Id. at 207a. On August 26, 2019, Petitioners’ petition for review was docketed by
this Court’s Filing Office on the day that it was received at the above address.2
Section 5571(b) of the Judicial Code states, in relevant part, that “an
appeal from a tribunal or other government unit to a court . . . must be commenced
within 30 days after the entry of the order from which the appeal is taken, in the
case of an interlocutory or final order.” 42 Pa. C.S. §5571(b). See also Pa. R.A.P.
105(b) (“An appellate court for good cause shown may upon application enlarge
the time prescribed by these rules . . . for doing any act, or may permit an act to be
done after the expiration of such time, but the court may not enlarge the time for
filing . . . a petition for review[.]”); Pa. R.A. P. 1512(a)(1) (“A petition for review
2
We denied Petitioners’ Petition for Supersedeas in a November 19, 2019 Memorandum
Opinion and Order. See Jessieco, Inc. v. Workers’ Compensation Appeal Board (McCutcheon)
(Pa. Cmwlth., No. 1172 C.D. 2019, filed November 19, 2019).
3
of a quasijudicial order, or an order appealable . . . under any other provision of
law, shall be filed with the prothonotary of the appellate court within 30 days after
the entry of the order.”). Because the failure to bring a timely appeal from a Board
order is a jurisdictional matter, it may be raised sua sponte and precludes this Court
from reaching the merits. Workmen’s Compensation Appeal Board v. Budd Co.,
370 A.2d 757, 758 (Pa. Cmwlth. 1977).
As outlined above, although Petitioners may have unsuccessfully
attempted to appeal the Board’s Opinion and Order by sending a timely petition for
review to the Board, Petitioners failed to timely submit a petition for review to this
Court, thereby depriving this Court of jurisdiction to consider the merits of this
appeal. 42 Pa. C.S. §5571(b); Pa. R.A. P. 105(b), 1512(a)(1); Budd Co. See also
SPS Technologies v. Workers’ Compensation Appeal Board (Marko), 907 A.2d 49,
50-51 (Pa. Cmwlth. 2006) (holding that an employer was not entitled to an appeal
of a Board order nunc pro tunc because its petition for review was negligently
submitted to the Board by counsel within the 30-day jurisdictional period, but was
received by this Court beyond that period).
Accordingly, the instant appeal is quashed.
MICHAEL H. WOJCIK, Judge
4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jessieco, Inc. and Southern :
Insurance Company of :
Virginia, c/o Donegal Mutual :
Insurance Company, :
:
Petitioners :
:
v. : No. 1172 C.D. 2019
:
Workers’ Compensation Appeal :
Board (McCutcheon), :
:
Respondents :
ORDER
AND NOW, this 6th day of January, 2021, the above-captioned appeal
is QUASHED.
__________________________________
MICHAEL H. WOJCIK, Judge