Opinion
Argued: March 4, 1982
May 11, 1982.
Workmen's compensation — Rehearing — Interlocutory order.
1. An order for a rehearing in a workmen's compensation case does not put the employer out of court, nor does it end the litigation nor dispose of the case; it is therefore interlocutory and not appealable. [447]
Argued: March 4, 1982, before Judges CRAIG, MacPHAIL and DOYLE, sitting as a panel of three.
Appeal, No. 81 C.D. 1981, from the Order of the Workmen's Compensation Appeal Board in the case of Barbara Cudo, w/o Lewis, deceased v. Hallstead Foundry, Inc., No. A-78806.
Petition to the Department of Labor and Industry for workmen's compensation death benefits. Benefits awarded. Employer appealed to the Workmen's Compensation Appeal Board. Appeal sustained. Claimant sought rehearing. Rehearing granted. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Timothy Lenahan, with him David E. Heisler, Lenahan Dempsey, P.C., for petitioner. Robert G. Dean, for respondent, Barbara Cudo, widow of Lewis Cudo, deceased.
Claimant's husband died May 17, 1979 at his place of employment. The issue before the referee was whether decedent's death was the result of the stress and tension of his regular work and was directly related thereto. Because the decedent's death was due in part to a pre-existing heart condition, it was necessary that Claimant establish by unequivocal medical evidence that the decedent's work activities aggravated the pre-existing condition thereby contributing to his death. American Refrigerator Equipment Co. v. Workmen's Compensation Appeal Board, 31 Pa. Commw. 590, 377 A.2d 1007 (1977). At the hearing before the referee, Claimant presented medical evidence in an effort to meet her burden. The referee found that evidence adequate and awarded Claimant workmen's compensation benefits. The Workmen's Compensation Appeal Board (Board) held that the medical evidence was not unequivocal and reversed the referee.
Barbara Cudo.
Claimant filed a timely petition with the Board for a rehearing alleging that she wanted to present additional after discovered evidence not previously available in the form of testimony from her late husband's personal physician. The employer contended that the evidence Claimant now wished to present could have been presented at the original hearing.
Hallstead Foundry.
The Board granted the rehearing, stating that, It appears that crucial medical evidence may now be available and for some reason it was not heretofore available, and in the interests [sic] of justice, particularly considering the difficult burden on a claimant in a death case such as cases [sic] as the one here involved, the rehearing is hereby granted.
It is that order of the Board which is the subject of the instant appeal.
Claimant contends, inter alia, that the Board's order granting the rehearing is interlocutory.
A final order is one which ends the litigation, or alternatively, disposes of the entire case. . . . Conversely phrased, "[a]n order is interlocutory and not final unless it effectively puts the defendant 'out of court.' " . . .
. . . .
"An order does not put 'a party out of court' unless it precludes proof of facts at trial, which if determined in favor of the pleader would provide him with a complete defense to the action."
Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 404-405, 319 A.2d 677, 678 (1974) (citations omitted). The Board's order in the instant case does not put the employer out of court nor does it end the litigation nor dispose of the case. It is clearly interlocutory.
This Court has held that an order setting aside a referee's determination and remanding the case for rehearing or for further evidence is ordinarily interlocutory and not appealable. Ricciardi v. Workmen's Compensation Appeal Board, 15 Pa. Commw. 339, 325 A.2d 677 (1974); Royal Pioneer Industries, Inc. v. Workmen's Compensation Appeal Board, 11 Pa. Commw. 132, 309 A.2d 831 (1973). In Murhon v. Workmen's Compensation Appeal Board, 51 Pa. Commw. 214, 414 A.2d 161 (1980), this Court held that since remand orders of the Board were interlocutory, they were unappealable, without exception. We are well satisfied that our decision in Murhon should apply also to orders of the Board which grant rehearings.
Appeal quashed.
ORDER
It is ordered that the within appeal is quashed.
Judge MENCER did not participate in the decision in this case.