# McDevitt v. Workmen's Compensation Appeal Board

> Supreme Court of Pennsylvania · February 2, 1989 · 520 Pa. 119

URL: https://www.frixlaw.com/law-library/cases/9706523

## Case

- **Full name:** Robert J. McDEVITT, Appellant, v. WORKMEN’S COMPENSATION APPEAL BOARD (RON DAVIDSON CHEVROLET)
- **Court:** Supreme Court of Pennsylvania
- **Decided:** February 2, 1989
- **Citations:** 520 Pa. 119; 552 A.2d 1048; 1989 Pa. LEXIS 98
- **Precedential status:** Published
- **Opinion:** Dissent by Papadakos
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Stout
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9706523

## Opinion text

PAPADAKOS, Justice,
dissenting.
I join in Mr. Justice Larsen’s dissenting opinion in this case, but write separately in order to express my amazement that this Court seems prepared to ignore a critical holding in the Commonwealth Court’s instant decision that is in turn based on a premise wholly unwarranted and, in my judgment, wholly unsound. I, of course, agree with Mr. *128 Justice Larsen that the three year statute of limitations defense (under Section 315 of the Workmen’s Compensation Act, 77 P.S. § 602), asserted by the employer in this case, should have been raised at the hearing before the referee— the very first opportunity on the administrative level at which to do so. Since it was not raised promptly and diligently at that time, it was waived. That, at least, is the result demanded by the relevant administrative rules. See, for example, 34 Pa.Code § 131.2, 1 Pa.Code §§ 35.48-35.50. See also, DeMarco v. Jones and Laughlin Steel Corp., 513 Pa. 526 , 522 A.2d 26 (1987), Mr. Justice Larsen’s Opinion Announcing the Judgment of the Court.
The Commonwealth Court’s decision in the instant case, McDevitt v. W.C.A.B. (Ron Davidson Chevrolet), 106 Pa. Commonwealth Ct. 207 , 525 A.2d 1252 (1987), acknowledges a problem with DeMarco . It is dismissed in a footnote, however.
We note our Supreme Court’s recent plurality decision in DeMarco v. Jones & Laughlin Steel Corporation, [513] Pa. [526], 522 A.2d 26 (1987), where the decision of the Court was that the employer’s failure to raise the defense of res judicata before the referee constituted a waiver of that issue. Id. at [531], 522 A.2d at 28-29 . We need not pass upon the effect of DeMarco , however, because the issue of whether a claim has been timely filed under Section 315 is jurisdictional and may be raised at any time before the compensation authorities. Harrington v. Mayflower Manufacturing Co., 173 Pa. Superior Ct. 130 , 96 A.2d 180 (1953).
525 A.2d at 1253-1254, n. 4 .
How did the statute of limitations defense under Section 315 become jurisdictional? The Commonwealth Court addresses that question in the main body of their opinion, to-wit:
Claimant contends that because Employer did not raise the statute of limitations before the referee, it is waived. We do not agree. The limitation contained in Section 315 is not a technical statute of limitations, which in conformi *129 ty with common law practice, must be pled affirmatively as a defense. Harrington v. Mayflower Manufacturing Co., 173 Pa. Superior Ct. 130 , 96 A.2d 180 (1953). “It is strictly a statute of repose which completely extinguishes the right and not merely the remedy, and may be invoked even though it has not been pleaded.” Id., 173 Pa.Superior Ct. at 132, 96 A.2d at 181 . Since the issue of whether a claim is barred by Section 315 is one that may be raised at any time before the compensation authorities, Harrington , the Board was correct in holding that the issue had not been waived by the Employer.
525 A.2d at 1253 (footnote omitted).
A review of Harrington reveals that the idea that we are dealing with a statute of repose here, and hence a jurisdictional statute, originated in earlier Superior Court cases and Harrington cites only one Supreme Court case as authority for this conclusion, namely, Calabria v. State Workmen’s Ins. Fund, 333 Pa. 40 , 3 A.2d 322 (1939). A careful review of Calabria , however, reveals that we said no such thing in that case!
I can only conclude that by a careless process of bootstrapping, the Superior Court, and now the Commonwealth Court, has elevated and enshrined a dubious proposition of law on which this Court has never spoken; but it is one which has unfortunate and dire consequences in this case. At the very least, we should review the question. I am convinced that the idea that this statute of limitations is absolute and jurisdictional, and of an exalted stature, comes from an earlier era that was anti-workingman; and from an era that was also unwilling to give full deference to the integrity of the administrative process. Times have changed, however, and there is no reason now, if there ever was one, to so favor this particular defense. That we might hold otherwise would be error in my judgment. That we will not even review the matter and set the authorities aright is tragic.
LARSEN, J., joins this dissenting opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9706523. Public record. Not legal advice.