                    IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edgar Alvarado,                             :
                       Petitioner           :
                                            :
               v.                           : Nos. 2485 and 2486 C.D. 2015
                                            : Submitted: May 27, 2016
Workers’ Compensation Appeal                :
Board (Badilla Construction and             :
First General Services of                   :
Northeastern Pennsylvania),                 :
                   Respondents              :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE PATRICIA A. McCULLOUGH, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                     FILED: June 21, 2016


               Edgar Alvarado (Claimant) petitions for review of two orders of the
Workers’ Compensation Appeal Board (Board) affirming the Workers’
Compensation Judge’s (WCJ) orders dismissing with prejudice two claim petitions
for benefits under the Pennsylvania Workers’ Compensation Act (Act) 1 because
Claimant and his counsel failed to appear at several hearings and failed to comply
with the WCJ’s scheduling order. We vacate the orders and remand the matter for
further proceedings.

      1
          Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
            On August 27, 2011, while employed by Badilla Construction
(Badilla) as a construction worker, Claimant purportedly sustained injuries in the
nature of right leg and knee injuries, foot swelling and pain, a calcaneal fracture,
and a mild head injury. Alleging that those injuries occurred during the course and
scope of his employment, Claimant filed a claim petition against Badilla seeking
payment of medical bills, attorney’s fees, and full and partial disability benefits.
On the same day, Claimant also filed a claim petition against First General
Services of Northeastern Pennsylvania and its insurer (collectively, First General),
alleging Badilla was performing services for First General at the time of the
alleged incident and that it was Claimant’s statutory employer. Badilla and First
General (collectively, Employers) separately filed Answers denying that the
incident occurred in the course and scope of Claimant’s employment.


            On September 9, 2013, a hearing was held at which Employers’
counsel were physically present, Claimant was not present and his counsel
participated by telephone. During the hearing, Claimant’s counsel indicated the
possibility of filing a claim against the Uninsured Employer Guaranty Fund (Fund)
because Badilla was uninsured at the time of the incident. Further, Claimant’s
counsel and Employers indicated that Claimant had not undergone a medical
examination by any party. At the hearing’s conclusion, the WCJ consolidated both
matters and directed Employers to have a medical examination prepared within 45
days and for Claimant to do the same within 90 days. No testimony or exhibits
were presented by any party.




                                         2
               On November 19, 2013, a hearing was held at which Employers’
counsel was present and Claimant’s counsel participated by telephone. Claimant,
again, was not present.         During the hearing, Claimant’s counsel stated that
Claimant was proceeding against First General based on its contention that it was
Claimant’s statutory employer at the time of the accident, and that even though
Badilla was uninsured, Claimant would not be filing a workers’ compensation
claim with the Fund. Claimant’s counsel also informed the WCJ that Claimant did
not undergo any medical examination as of that date by either party. The WCJ
granted Claimant’s request to bifurcate the matter regarding whether First General
was Claimant’s employer, stated that he “will give everybody some extra time on
the medicals,”2 advised that Claimant would be expected to testify at the next
hearing, and scheduled mandatory mediation for all parties involved.           No
testimony or exhibits were presented by any party at the hearing.


               On February 25, 2014, a hearing was scheduled before the WCJ.
Neither Claimant nor his counsel appeared at the hearing. The WCJ went on
record stating that the matter was dismissed with prejudice reasoning:

               This case has previously had --- I’m looking at one, two -
               -- this is the third listing. Fourth listing. Excuse me.
               And it was listed today for ten o’clock. It’s five minutes
               after eleven. Nobody is here. My understanding, since
               this was previously listed in front of Judge Hemak and he
               dismissed it for failure to appear. And I am going to do
               the same thing. And at this point, this matter is
               dismissed.


      2
          Supplemental Reproduced Record (S.R.R.) at 24b.




                                              3
(S.R.R. at 33b-34b.) No testimony or exhibits were presented by any party at the
hearing. On March 4, 2014, the WCJ circulated identical orders for both matters
stating:

                 AND NOW, upon the failure of Claimant or his counsel
                 to appear repeatedly at hearings and upon violation of a
                 scheduling order given by this Judge on September 9,
                 2013, it is ORDERED that this matter is DISMISSED
                 WITH PREJUDICE.


(Reproduced Record (R.R.) at 43a.) No further reasoning or findings of fact were
provided by the WCJ or included in the order.3




       3
        The second page of each circulated decision provides a list of hearings. The WCJ listed
seven hearings scheduled for the claim petition against First General:

                   02/25/2014               10:00:00                 Canceled
                   02/25/2014               10:00:00                 Conducted
                   01/10/2014               14:00:00                 Conducted
                   11/19/2013               15:30:00                 Conducted
                   09/09/2013               10:45:00                 Conducted
                   08/16/2013               15:20:00                 Canceled
                   07/23/2013               13:45:00                 Canceled

(R.R. at 41a.) The WCJ listed four hearings scheduled for the claim petition against Badilla:

                   02/25/2014               10:15:00                 Conducted
                   01/10/2014               14:20:00                 Conducted
                   09/09/2013               10:45:00                 Conducted
                   08/16/2013               15:20:00                 Canceled

(R.R. at 45a.)




                                                4
              Claimant timely appealed to the Board, contending that the WCJ erred
when dismissing both matters with prejudice. The Board affirmed the WCJ’s
decision because Claimant showed a lack of diligence in prosecuting his case and
the record failed to demonstrate any extenuating circumstance to justify this
dilatory behavior. Claimant then timely4 filed this petition for review.5


              Claimant’s main contention is that the WCJ’s order dismissing both
matters with prejudice was an abuse of discretion because the WCJ failed to
provide findings demonstrating that his non-appearance at the hearing was
prejudicial to either Badilla or First General, and there is no evidence to support
that his non-appearance at just one hearing showed that Claimant was not
prosecuting his claim petitions. Specifically, Claimant contends that the WCJ’s
reasoning for the dismissal of both matters is clearly erroneous because his prior
claim petition was not dismissed for a lack of prosecution and was, instead,
deemed withdrawn, and because the WCJ incorrectly reasoned that Claimant
missed several hearings when in actuality he only failed to appear at the February
2014 hearing. Regarding dismissal of a claim petition, this Court has explained:

                    “[I]t is within the WCJ’s discretion to control his
              docket by ordering parties to comply with litigation in a
       4
          First General contends that Claimant’s appeal is untimely because his petition was
processed by this Court on November 30, 2015, which is beyond the 30th day from the Board’s
circulated decision on October 28, 2015. However, the record demonstrates that Claimant’s
petition was filed on or before November 26, 2016.

       5
         Our scope of review in a workers’ compensation appeal is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
was committed, or whether constitutional rights were violated. City of Scranton v. Workers’
Compensation Appeal Board (Roche), 909 A.2d 485, 486 n.1 (Pa. Cmwlth. 2006).



                                               5
            timely manner.” US Airways v. Workers’ Compensation
            Appeal Board (McConnell), 870 A.2d 418, 423 (Pa.
            Cmwlth. 2005). If they do not comply, the WCJ may
            close the record and preclude the submission of evidence,
            provided he first warns the parties that the record will
            close. Fremont Farms v. Workmen’s Compensation
            Appeal Board (Phillips), 608 A.2d 603 (Pa. Cmwlth.
            1992). Nevertheless, a WCJ’s dismissal of a petition for
            lack of prosecution can be set aside for abuse of
            discretion. Baird v. Workmen’s Compensation Appeal
            Board (MCTEL), 602 A.2d 452 (Pa. Cmwlth. 1992).


Wagner v. Workers’ Compensation Appeal Board (Ty Construction Company), 83
A.3d 1095, 1098-99 (Pa. Cmwlth. 2014).


            In Ty Construction Company, we conducted an extensive review of
our case law regarding when it was an abuse of discretion for a WCJ to dismiss an
appeal with prejudice for failure to comply with scheduling orders. Citing to
MCTEL, where a WCJ dismissed a claim petition where a claimant did not provide
medical reports as had been directed by the WCJ and did not appear for a hearing
but there had not been a showing of prejudice to employer, we held that the WCJ’s
dismissal was an abuse of discretion “because of the harshness of the action,
dismissal is only appropriate where prejudice is shown.”         Ty Construction
Company, 83 A.3d at 1099 (citing MCTEL, 602 A.2d at 454). However, we
recognized that there was an exception to this rule “where the evidence shows that
the claimant’s counsel is ‘not trying’ to advance the case.”     Ty Construction
Company, 83 A.3d at 1101 (citing Cipollini v. Workmen’s Compensation Appeal
Board (Philadelphia Electric Company), 647 A.2d 608 (Pa. Cmwlth. 1994))
(affirming the WCJ’s dismissal of a claimant’s claim petition despite there being
no explicit findings of prejudice to the employer where deadlines were repeatedly

                                         6
continued and then disregarded by claimant’s counsel and it was additionally
admitted that he had not taken any action on the case).


             No one is contending that any of the purported non-appearances by
Claimant caused any prejudice to Employer; the only issue here is did Claimant not
diligently advance the case. The only reasons that the WCJ gave for dismissing the
action was his belief that Claimant or his counsel failed to appear repeatedly at
hearings and one violation of a scheduling order. In the reproduced record and his
brief, Claimant sets forth numerous documents challenging the WCJ’s finding that
he failed to appear at hearings. However, none of those documents are part of the
certified record, which is understandable given that the WCJ took the action
without giving notice or opportunity to Claimant or his Counsel that his appeal was
going to be dismissed. Nonetheless, those documents cannot be considered by the
Court in disposing of this appeal because they are not part of the certified record.
See B.K. v. Department of Public Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012)
(“An appellate court is limited to considering only those facts that have been duly
certified in the record on appeal. For purposes of appellate review, that which is
not part of the certified record does not exist.”).


             Accordingly, because Claimant was not “warned” that his appeal was
going to be dismissed, not given a hearing to challenge the conclusion that he
failed to appear at the other hearings that the WCJ stated that he did not appear,
and not given an opportunity to explain his non-appearance at the February 25,
2014 hearing, this matter is vacated and remanded to the Board with instruction to




                                            7
remand to the WCJ to take evidence and make the appropriate findings regarding
the issue of whether Claimant’s claim petition should be dismissed.



                                      __________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Edgar Alvarado,                          :
                  Petitioner             :
                                         :
            v.                           : Nos. 2485 and 2486 C.D. 2015
                                         :
Workers’ Compensation Appeal             :
Board (Badilla Construction and          :
First General Services of                :
Northeastern Pennsylvania),              :
                   Respondents           :




                                   ORDER


            AND NOW, this 21st aa day of June, 2016, it is hereby ordered that the
orders of the Workers’ Compensation Appeal Board dated October 28, 2015 at No.
A17-0269 and No. A14-0270, are vacated and this matter is remanded to the
Workers’ Compensation Appeal Board with instruction to remand to the Workers’
Compensation Judge for further proceedings consistent with this opinion.


            Jurisdiction relinquished.



                                         __________________________________
                                         DAN PELLEGRINI, Senior Judge
