Opinion
Argued September 10, 1974
October 2, 1974.
Workmen's compensation — Remand — Interlocutory order — Appealable order — Assignment to particular referee — Bias or prejudice.
1. An order of the Workmen's Compensation Appeal Board setting aside a determination of a referee in a workmen's compensation case and remanding the matter for rehearing is ordinarily interlocutory and unappealable. [341]
2. When the Workmen's Compensation Appeal Board remands a case for rehearing, an appeal may not be taken from that portion of the order which assigns the case to a particular referee, and evidence of alleged bias and prejudice of such referee can be first raised below at rehearing or before the Board and be subject to judicial review thereafter. [341]
Argued September 10, 1974, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 970 C.D. 1973, from the Order of the Workmen's Compensation Appeal Board in case of Joseph Ricciardi v. Fleming Company, No. A-65805.
Application to Department of Labor and Industry for workmen's compensation benefits. Application denied. Applicant appealed to the Workmen's Compensation Appeal Board. Reversed and remanded. Employer and insurance carrier appealed to the Commonwealth Court of Pennsylvania. Held: Appeal quashed.
Julius E. Fioravanti, for appellant.
David L. Pennington, with him James N. Diefenderfer, for appellees.
After an evidentiary hearing, workmen's compensation referee Wallace J. Stevenson denied the claim of the instant appellant, Joseph Ricciardi, for workmen's compensation benefits. Mr. Ricciardi appealed the referee's order to the Workmen's Compensation Appeal Board which reversed it and remanded the case to Referee Stevenson for rehearing.
We are informed by copies of correspondence attached to the appellant's Petition on Appeal that the following then occurred: counsel for the appellant requested Mr. Stevenson to disqualify himself from rehearing the case on the ground that he had conducted the original hearing and had made a determination adverse to the appellant; Referee Stevenson refused this request but referred it to the Department of Labor and Industry; because no response from the Department had as yet been received, Referee Stevenson continued a scheduled remand hearing for a period of 30 days, remarking, according to a letter from Mr. Ricciardi's counsel the Department, that he, Referee Stevenson, would hear the case within 30 days "notwithstanding any ruling that might come out of" the Department; and, finally, by letter dated June 28, 1973, the Department rejected the appellant's request that Mr. Stevenson's assignment to rehear the case be set aside.
The instant appeal is stated by the appellant to be from what he denominates the Department's "Order" of June 28, 1973.
An order of the Workmen's Compensation Appeal Board setting aside a referee's determination and remanding the case for rehearing or for further evidence is ordinarily interlocutory and not appealable. Royal Pioneer Ind., Inc. v. Workmen's Compensation Appeal Board, 11 Pa. Commw. 132, 309 A.2d 831 (1973); Grove v. Lewis Brothers Painting Contractors, 80 York 49 (1966), aff'd, 209 Pa. Super. 774 (1967). The appellant here, after losing before the referee, seeks to appeal from a portion only of a remand order granting him a rehearing.
The appellant may adduce evidence of bias or prejudice at Referee Stevenson's remand hearing or, by allowance of the Workmen's Compensation Appeal Board, at an evidentiary hearing conducted by it. If the case is again decided against the appellant, the question here sought to be raised will be subject to judicial review.
ORDER
AND NOW, this 2nd day of October, 1974, it is ordered that the appeal of Joseph Ricciardi be and it is hereby quashed.