General Electric Co. v. Workers' Compensation Appeal Board

CONCURRING OPINION

Justice SAYLOR.

I join the majority opinion, except for its treatment of the Commonwealth Court’s decision in Bennett v. WCAB (Hartz Mountain Corp.), 158 Pa.Cmwlth. 547 , 682 A.2d 596 (1993).

With regard to Bennett, I read the order crafted by this Court on appellate review, not as a per curiam reversal (which would reflect a directive from this Court in terms of the actual merits disposition for the case, thus embodying a holding having-the effect of precedent), but as in the nature of a grant, vacate, and remand order (which merely requires reconsideration by the intermediate appellate court of its prior decision to assess the import of some principle or authority identified by this Court). See Bennett v. WCAB (Hartz Mountain Corp.), *115 537 Pa. 433 , 644 A.2d 729 (1994). In the face of new decisions that clarify relevant, underlying legal principles, this Court occasionally will remand an appeal to the intermediate appellate court so that it can ensure that its reasoning fully comports with the law as clarified. The clarification may affect the disposition of the case in some circumstances, but in others it will not—this is, in the first instance, a matter to be determined by the intermediate appellate court in the remand proceedings. Such understanding of this Court’s decision to remand Bennett in light of Dillon v. WCAB (Greenwich Collieries), 536 Pa. 490 , 640 A.2d 386 (1994), seems particularly apt, not only because the Court chose not to reverse the Commonwealth Court’s existing decision, but also since Dillon embodied a clarification of some fundamental concepts at work in Bennett, but did not address itself to Bennett’s central question, namely, the effect of a claimant’s bad-faith refusal of an offer of permanent employment.

As the majority notes, the offer of permanent employment at issue in Bennett, see Bennett, 158 Pa.Cmwlth. at 554 , 632 A.2d at 600 , is also materially different from the circumstances under review here, where the fact-finder determined, based on substantial evidence, that the relevant offer involved temporary employment. Moreover, it seems to me that the employer’s position, as concerns bad-faith refusal of an offer of permanent employment, is materially stronger than in the scenario in which the employment can be deemed to have been temporary from the outset. Thus, I would leave the matter of the validity of Bennett’s holding (“[WJhere a claimant acts in bad faith in refusing suitable and available work, permanent at the time it is offered, the claimant’s benefits are reduced for an indefinite period by the amount of the earnings the job would have produced.”), id. at 555 , 632 A.2d at 600 , for a future case involving salient facts.