9 Pa. Commw. 172 | Pa. Commw. Ct. | 1973
Opinion by
Celia Smith (claimant), while doing housecleaning in the home of D. J. Nelson and Ruth Nelson, his wife, fell down the stairway leading from the kitchen to the basement of the Nelson residence. Claimant filed for workmen’s compensation against D. J. and Ruth Nelson, trading as Nelson’s Homes of Claysburg, Inc., and their compensation carrier, Pennsylvania National Mutual Casualty Insurance Company (Nelsons), and alleged various physical injuries resulting from the accidental fall which she had suffered on May 10, 1969.
Following a hearing, the Workmen’s Compensation Referee concluded that the claimant was not in the course of her employment with Nelson’s Homes of Claysburg, Inc., at the time she fell on May 10, 1969 and therefore not entitled to compensation. Claimant appealed to the Workmen’s Compensation Appeal Board (Board) from the Referee’s disallowance, and the Board heard the appeal on May 20, 1971.
This response from the attorney for Nelsons was received by the Board on March 1, 1972. Nothing happened further until November 8, 1972, when the Board filed - an opinion and made an award to the claimant and thereby reversed the Referee’s disallowance. Nelsons timely took this appeal from the Board’s award to claimant.
Nelsons have raised several substantial questions in this appeal but, because of the disposition that we make here, we will only consider the contention that the Board erred in deciding this case without affording the Nelsons the opportunity to submit a brief in accordance with the prior board’s grant of permission.
We were confronted with a nearly identical situation in Bengal v. State Board of Pharmacy, 2 Pa. Commonwealth Ct. 347, 279 A. 2d 374 (1971). We stated in Bengal that “[njothing could be clearer than the mandatory provision of the Administrative Agency Law with regard to briefs: ‘All parties shall be afforded opportunity to submit briefs prior to adjudication. Oral argument upon substantial issues may be heard by the agency.’ Act of June 4, 1945, P. L. 1388, sec. 33, 71 P.S. §1710.33.” 2 Pa. Commonwealth Ct. at 349, 279 A. 2d at 375.
Order
Now, this 11th day of June, 1973, the award of the Workmen’s Compensation Appeal Board, docketed November 8, 1972, is hereby set aside, and this case is remanded to the Board to give I). J. and Ruth Nelson, trading as Nelson’s Homes of Claysburg, Inc., and Pennsylvania National Mutual Casualty Insurance Company, a reasonable length of time to file a brief and, if the Board will permit, to fix a date when oral argument may be heard by it on the substantial issues in the case.
The record does not disclose what happened at that hearing and apparently no evidence was taken by the Board.
The testimony at the hearing before the Referee had not been transcribed as of the time of the hearing before the Board and neither party had prepared briefs for the Board.