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 Judge 1

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT R EPORTED

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.2 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, 20 14, while in the course an d scope of his

employment as a g eneral c ontractor. 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 Boa rd’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 file d 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 cont acted 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.3 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 th e 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 sta tes, 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. §55 71(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 e nlarge 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).4

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 i s a jurisdictional matter, it may be raised sua sponte and precludes th is 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 t imely 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, JudgeIN 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 :

O R D E R

AND NOW, this 6 th day of January , 202 1

, the above

- captioned appeal

is QUASHED.

__________________________________ MICHAEL H. WOJCIK, Judge