Hostler v. Workers' Compensation Appeal Board

Justice SAYLOR,

dissenting.

I respectfully dissent from the per curiam, merits-based disposition of this case. The allocatur stage is normally reserved for making the threshold determination of whether to grant discretionary review. See Supreme Court IOP § 5C. The majority, however, undertakes to assess the merits to conclude that the Commonwealth Court erred in its average weekly wage analysis under the Workers’ Compensation Act.

I continue to adhere to the view that the Court should exercise greater restraint at the discretionary review stage. See, e.g., Progressive N. Ins. Co. v. Henry, 607 Pa. 94, 4 A.3d 153, 153 (2010) (Saylor, J., dissenting); Cnty. of Berks v. Int’l Bhd. of Teamsters Local Union No. 429, 600 Pa. 128, 963 A.2d 1272, 1272-73 (2009) (Saylor, J., dissenting). While the outcome of certain matters may be so apparent as to justify a per curiam disposition on the allocatur docket, particularly where a decision of this Court is clearly aligned with the case under review, I do not regard the authority cited in the majority’s order as satisfying this criterion. See Reifsnyder v. WCAB (Dana Corp.), 584 Pa.341, 883 A.2d 537 (2005); Hannaberry HVAC v. WCAB (Snyder, Jr.), 575 Pa.66, 834 A.2d 524 (2003). To this end, Reifsnyder does not set forth a per se test for determining whether a continuous employment relationship exists, and the unique facts of Hannaberry do not readily analogize to the present scenario.

*504Moreover, while some of the factors cited in Reifsnyder for finding a long-term employment relationship are absent from this case, the Commonwealth Court observed that, for nine years, Claimant experienced a yearly layoff for several months, after which he always returned to work, and that Employer had intended to re-call Claimant after a layoff in September 2007. As the significance of such a history in the overall continuing-employment-relationship inquiry is unclear, see Reifsnyder, 883 A.2d at 547 (“In addition, Claimants all returned to work with Employer following their respective layoffs, evidencing an ongoing employment relationship despite the periods of inactivity.”), I cannot join the per curiam disposition of this case.