W. Wheatley v. Pyramid Hotel Group (WCAB)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wesley Wheatley, :
Petitioner :
:
v. :
:
Pyramid Hotel Group (Workers’ :
Compensation Appeal Board), : No. 1017 C.D. 2022
Respondent : Submitted: December 4, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION BY
JUDGE COVEY FILED: January 11, 2024
Wesley Wheatley (Claimant) petitions this Court for review of the
Workers’ Compensation (WC) Appeal Board’s (Board) September 1, 2022 Field
Office Order denying his Petition for Miscellaneous - Other (Petition) because it was
not timely filed. Claimant presents one issue for this Court’s review: whether the
Board erred by denying the Petition as late filed. After review, this Court affirms.
On January 24, 2019, Claimant filed a Claim Petition for WC benefits
(Claim Petition) alleging that he sustained a work-related aggravation of preexisting
allergic and asthmatic pathology, respiratory system injuries, and endocrine system
acquired diabetes on October 8, 2018. On May 13, 2020, WC Judge (WCJ) Audrey
Beach (WCJ Beach) granted the Claim Petition. Claimant and Pyramid Hotel Group
(Employer) appealed from WCJ Beach’s decision to the Board.
On March 25, 2021, the Board affirmed WCJ Beach’s decision in part,
reversed it in part, and remanded the matter for WCJ Beach to
re-examine the existing record, re-open the record to the
extent necessary in regard to what data between October
28, 2018 and October 8, 2019 wage benefits are to be
reduced due to other employment and by what amount.
On remand, Claimant is to be afforded an opportunity to
raise objections to any such wage credits raised by
[Employer], and [Employer] is to be afforded an
opportunity to defend against any claim to penalties. The
[WCJ] is further directed to issue an [a]mended [d]ecision
and [o]rder which meets the reasoned decision
requirement of the [WC] Act [(Act)].[1]
Board Dec. at 15 (Reproduced Record (R.R.) at 43a-44a).
On remand to WCJ Beach, the parties entered into a Stipulation of Facts
(Stipulation). See R.R. at 49a-51a. On August 31, 2021, WCJ Beach issued an
amended decision and order simply granting the Claim Petition “in accordance with
the [] Stipulation.” WCJ Beach 8/31/2021 Order (August 2021 Order) at 4 (R.R. at
48a). Neither party appealed from the August 2021 Order.
On September 29, 2021, Claimant appealed from the Board’s March
25, 2021 order to this Court.2 By April 22, 2022 Memorandum and Order, this Court
quashed Claimant’s appeal on the basis that he improperly appealed from WCJ
Beach’s August 2021 Order without first appealing therefrom to the Board, as this
Court has set forth in Dowhower v. Workers’ Compensation Appeal Board (Capco
Contracting), 934 A.2d 774 (Pa. Cmwlth. 2007), and Shuster v. Workers’
Compensation Appeal Board (Pennsylvania Human Relations Commission), 745
A.2d 1282 (Pa. Cmwlth. 2000).
On May 13, 2022, Claimant filed a petition that this Court deemed an
application for reconsideration of its April 22, 2022 Order (Reconsideration
Application). In his Reconsideration Application, Claimant asserted that his
September 29, 2021 appeal was a challenge to the Board’s March 25, 2021 decision
and not the August 2021 Order.
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
Wheatley v. Pyramid Hotel Grp. (Workers’ Comp. Appeal Bd) (Pa. Cmwlth. No. 1069
C.D. 2021, Memo & Order filed Apr. 22, 2022).
2
On May 20, 2022, this Court dismissed Claimant’s Reconsideration
Application as untimely filed because Pennsylvania Rule of Appellate Procedure
2542(a)(1) specifies that reconsideration requests must be filed within 14 days after
entry of the order involved, and Claimant filed the Reconsideration Application on
May 13, 2022, 21 days after this Court issued its April 22, 2022 Order. See
Pa.R.A.P. 2542(a)(1). This Court’s May 20, 2022 Order further declared:
[E]ven if [Claimant’s] [Reconsideration Application] had
been timely filed, [this Court] would still find that
[Claimant’s] petition for review must be quashed. Here,
the last order of the [Board] is dated March 25, 2021, and
the petition for review was filed on September 29, 2021,
which is more than 30 days after the Board’s decision and,
therefore, untimely. See Pa.R.A.P. 1512(a)(1). In order to
timely perfect an appeal to this Court, [Claimant] would
have to ask the Board to render a final order following the
issuance of the August 31, 2021 decision of [WCJ Beach].
As noted in our prior [Memorandum and] Order, this
Court is unable to act on appeals that are taken directly
from a WCJ order. See Shuster . . . ; Dowhower . . . .
May 20, 2022 Order at 1-2 (R.R. at 53a-54a).
On May 23, 2022, Claimant mailed the Petition to the Board, which the
Board received on May 26, 2022, therein requesting “an [o]rder making all
proceedings before it final, so [he] can file an [a]ppeal to the Commonwealth
Court.”3 Certified Record Item 2 at 2.4 The Board acknowledged receipt of
Claimant’s Petition on June 6, 2022. See R.R. at 60a-61a. Employer did not
challenge the Petition. On September 1, 2022, the Board issued the Field Office
Order denying the Petition, explaining:
3
The Petition was in the form of a letter from Claimant’s counsel to the Board. See
Certified Record Item 2 at 1-2. When the Board acknowledged receiving the letter, it designated
the letter a Petition for Miscellaneous - Other. See R.R. at 60a.
4
Claimant did not include the Petition in the Reproduced Record.
3
For the same reasons cited by the Commonwealth Court,
mainly those which were stated in the Shuster decision,
following a [Board] remand to the WCJ, [] any aggrieved
party must then file an appeal with the Board [] or ask the
Board to certify its original determination as final for
appeal to the Commonwealth Court. As [] Claimant’s
appeal is now late pursuant to Section 423[(a)] of the Act[,
77 P.S. § 853,5] because [it] was not filed within 20 days
of [] WCJ [Beach’s August 2021 Order], the relief
requested by []Claimant is DENIED[.]
Board Field Office Order at 1 (R.R. at 65a). Claimant appealed to this Court.6
Claimant argues that the Board erred by denying his appeal as untimely
because he appealed to this Court on September 29, 2021, reasonably believing that
since “the issues on remand had been resolved, and the parties had previously timely
appealed . . . to the Board, finality had been achieved.” Claimant Br. at 9. Claimant
specifically asserts:
What more would the Board need to constitute actual
finality than that which was supplied by [WCJ Beach] to
the Board in [the August 2021 Order]? That [August 2021
Order] fills in the blanks to finality. There are no further
requirements that the Board could possibly require.
Hence, the appeal by [Claimant] was not an appeal from
[WCJ Beach’s August 2021 Order] but from the [March
25, 2021] Board [d]ecision and the Board erred by not
simply declaring finality as intimated by the
Commonwealth Court [in its May 20, 2022 Order].
Id. at 10. Claimant further contends, “[i]n the alternative, [that] the Board erred by
not using its equitable powers to declare finality, rather than denying the relief
5
Section 423(a) of the Act states, in pertinent part: “Any party in interest may, within [20]
days after notice of a [WCJ’s] adjudication shall have been served upon him, take an appeal to the
[B]oard . . . .” 77 P.S. § 853.
6
“Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated.” Pierson v. Workers’ Comp. Appeal Bd. (Consol Pa. Coal Co. LLC), 252 A.3d
1169, 1172 n.3 (Pa. Cmwlth.), appeal denied, 261 A.3d 378 (Pa. 2021).
4
sought by [Claimant] . . . the Board had to know that all issues on [] remand had
been satisfied.” Claimant Br. at 10.
However, the law is well settled that “[a] Board order remanding a case
to the WCJ for further action is interlocutory and cannot be appealed until the WCJ
has issued his[/her] subsequent order.” Shuster, 745 A.2d at 1285. Once the WCJ
has issued an order after remand, even if the WCJ’s order is favorable to the parties,
“[t]he Board, not this Court, must review [it] before this Court can undertake its
appellate review.” Dowhower, 934 A.2d at 778; see also Carolina Freight Carriers
Corp. v. Workmen’s Comp. Appeal Bd. (Armitage), 585 A.2d 555 (Pa. Cmwlth.
1990). The Shuster Court explained:
[N]o matter whether a party appeals [from] the Board’s
decision . . . or the WCJ’s decision . . . , he or she is
required to follow the normal procedure to appeal a WCJ
decision[,] which is to file an appeal with the Board within
20 days after notice of that decision has been received.
[See] Section 423[(a)] of the Act, 77 P.S. § 853. The party
can then file a motion with the Board requesting that the
Board make its previous order final.
Id. at 1287. The Shuster Court made clear that future appeals taken directly from a
WCJ’s remand order to this Court would be quashed. See id.; see also Dowhower,
934 A.2d at 779 (citing to Shuster) (“[A] matter may not come to this Court directly
from the WCJ’s decision without first going through the Board[.]”).
Here, contrary to the Court’s instructions in Dowhower and Shuster,
Claimant did not appeal to the Board within 20 days of receiving WCJ Beach’s
August 2021 Order and request that the Board make its March 25, 2021 decision
final so he could appeal to this Court. Rather, Claimant appealed from the Board’s
March 25, 2021 decision to this Court on September 29, 2021. Claimant asserts that
WCJ Beach’s August 2021 Order had the effect of making the Board’s interlocutory
5
March 25, 2021 decision final and appealable. However, in Carolina Freight, this
Court expressly rejected that reasoning in similar circumstances.
Regarding Claimant’s alternative argument, this Court acknowledges
that the Act “is remedial in nature and intended to benefit the worker, and, therefore,
the Act must be liberally construed to effectuate its humanitarian objectives.” Hi-
Tech Flooring, Inc. v. Workers’ Comp. Appeal Bd. (Santucci), 280 A.3d 1141, 1148
(Pa. Cmwlth. 2022) (quoting City of Pittsburgh v. Workers’ Comp. Appeal Bd.
(Robinson), 67 A.3d 1194, 1202 n.8 (Pa. Cmwlth. 2013)). This Court also
recognizes that Pennsylvania Rule of Appellate Procedure 105 provides that courts
are to liberally construe appellate rules “to secure the just, speedy, and inexpensive
determination of every matter to which they are applicable[,]” and that the courts
may “disregard the requirements or provisions . . . in a particular case on application
of a party or on its own motion and may order proceedings in accordance with its
direction.” Pa.R.A.P. 105.
Notwithstanding that
the Act is liberally construed, in the realm of time
limitations a considerable level of strictness is implicated.
Virtually all of the time limitations - . . . governing the time
to be taken for appeal - are strictly construed. Although
“technicalities are not looked upon with favor in
compensation cases,” [Katz v. Evening Bull., 403 A.2d
518, 520 (Pa. 1979)7 (quoting Wilkinson v. United Parcel
Serv., 43 A.2d 408, 412 (Pa. Super. 1945)),] . . . time
limitations . . . have for decades been identified as not
being “technicalities.” [Id.]
....
7
The Katz Court remanded the matter to this Court on other grounds. On appeal from this
Court’s decision, the Pennsylvania Supreme Court reversed. See Workmen’s Comp. Appeal Bd. v.
Evening Bull., 409 A.2d 970 (Pa. Cmwlth. 1980), rev’d, 445 A.2d 1190 (Pa. 1982).
6
The appeal provisions of both the Act and the appellate
rules . . . provide for time limitations that have as their
priority not humanitarian concerns but judicial economy
and order.
David B. Torrey & Andrew E. Greenburg, 8 West’s Pa. Prac., Workers’ Comp. §
14:1 (4th ed. 2022) (emphasis in original).
Further,
[i]t is well established that the failure to file an appeal
within the requisite time period is jurisdictional. Our
Supreme Court has cautioned that “[i]n order to perfect an
appeal, parties must strictly adhere to the statutory
provisions for filing an appeal.” Criss [v. Wise], 781 A.2d
[1156,] 1159 [(Pa. 2001)]. The deadline for filing an
appeal “cannot be extended as a matter of grace or mere
indulgence.” Bass v. Commonwealth, . . . 401 A.2d 1133,
1135 ([Pa.] 1979). Moreover, “[t]he burden to establish
the right to have an untimely appeal considered is a heavy
one because the statutory time limit established for appeals
is mandatory.” Hessou [v. Unemployment Comp. Bd. of
Rev.], 942 A.2d [194,] 198 [(Pa. Cmwlth. 2008)].
Best Courier v. Dep’t of Lab. & Indus., 220 A.3d 696, 700 (Pa. Cmwlth. 2019)
(citations and footnote omitted). Thus, “where a jurisdictional issue is present, a
court may raise the matter sua sponte, and it is clear that jurisdiction may not be
conferred by the [respondent’s] failure to raise the issue below.” Lin v. Bd. of
Revision of Taxes of the City of Phila., Off. of Unemployment Comp. Tax Servs., 137
A.3d 637, 642 (Pa. Cmwlth. 2016).
Although Section 423(a) of the Act authorizes the Board to extend the
time for taking an appeal “upon cause shown,” 77 P.S. § 853, this Court has
articulated:
Limited circumstances exist in which an untimely appeal
may be considered. [Hessou, 942 A.2d at 198]. Nunc pro
tunc relief is a form of equitable relief that is available only
“in certain extraordinary circumstances.” Criss, 781 A.2d
at 1159. Allowable exceptions include cases involving
7
fraud, a breakdown in the administrative process, or when
there is a “non-negligent failure to file a timely appeal
which was corrected within a very short time, during
which any prejudice to the other side of the controversy
would necessarily be minimal.” Bass, 401 A.2d at 1135-
36. . . . Nunc pro tunc relief for non-negligent conduct is
generally reserved for only those “unique and compelling
cases in which the appellant has clearly established that
[the petitioner] attempted to file an appeal, but
unforeseeable and unavoidable events precluded [the
petitioner] from actually doing so.” Criss, 781 A.2d at
1160.
Best Courier, 220 A.3d 701. Claimant did not raise to the Board or this Court any
non-negligent circumstances or fraud or its equivalent that may have allowed his
appeals to proceed nunc pro tunc.8 Accordingly, neither equity nor the fact that
Employer did not challenge Claimant’s Petition is dispositive here.
Because Claimant never appealed to the Board from WCJ Beach’s
August 2021 Order, and he filed the Petition asking the Board to make its March 25,
2021 decision final on May 23, 2022 (265 days after WCJ Beach issued the August
2021 Order), the Board properly denied Claimant’s Petition as untimely filed.
Based on the foregoing, the Board’s Field Office Order is affirmed.
_________________________________
ANNE E. COVEY, Judge
8
Despite that Claimant did not seek or even reference nunc pro tunc relief in the Petition,
in the Field Office Order, the Board nevertheless stated: “[Claimant] requests that [the Petition] be
treated as a [n]unc [p]ro [t]unc appeal from WCJ [] Beach’s [August 2021 Order]. We deny the
relief requested.” R.R. at 65a.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Wesley Wheatley, :
Petitioner :
:
v. :
:
Pyramid Hotel Group (Workers’ :
Compensation Appeal Board), : No. 1017 C.D. 2022
Respondent :
ORDER
AND NOW, this 11th day of January, 2024, the Workers’
Compensation Appeal Board’s September 1, 2022 Field Office Order is affirmed.
_________________________________
ANNE E. COVEY, Judge