Kelley v. Wolff Petroleum, Inc.
| Decision Date | 20 August 1991 |
| Citation | 407 Pa.Super. 253,595 A.2d 627 |
| Parties | William H. KELLEY and Patricia J. Kelley v. WOLFF PETROLEUM, INC. v. Charles GAYSON. Appeal of William H. KELLEY, Patricia J. Kelley, Parties Plaintiff and Fireman's Fund Insurance Company. |
| Court | Pennsylvania Superior Court |
Laurence M. Kelly, Montrose, for appellants.
Paul A. Barrett, Scranton, for appellee Gayson.
Before WIEAND, BECK and HUDOCK, JJ.
This appeal is from an order which denied a petition by a workmen's compensation carrier seeking intervention by the carrier in the plaintiff-employee's third party tort action. After careful review, we conclude that the trial court's order in this case was interlocutory and that an appeal, therefore, will not lie.
As a general rule, an appeal will not lie from an order denying intervention, because such an order is not a final determination of the claim made by the would-be intervenor. However, in some cases, the order denying intervention has the practical effect of denying relief to which the intervenor is entitled and which he can obtain in no other way. Such an order will be deemed final, and an appeal therefrom will be allowed. See: Van Den Heuval v. Wallace, 382 Pa.Super. 242, 555 A.2d 162 (1989); Maginley v. Robert J. Elliott, Inc., 345 Pa.Super. 582, 498 A.2d 977 (1985); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982). In order to determine the appealability of an order denying intervention, therefore, one must examine the ramifications of the order to determine whether it constitutes a practical denial of relief to which the petitioner for intervention is entitled and which he can obtain in no other way.
In the past, the Superior Court has accepted appeals from workmen's compensation carriers who were denied the right to intervene in third party actions by employees who had been paid workmen's compensation benefits. Orders denying intervention in such cases had had the practical effect of denying or impairing the subrogation rights which were guaranteed to the carrier by Section 319 of the Workmen's Compensation Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 671. See: Maginley v. Robert J. Elliott, Inc., supra. See also: Van Den Heuval v. Wallace, supra. In the instant case, however, the circumstances are different. Here, it is clear from the record that the interests of the workmen's compensation carrier are already adequately represented and that it will suffer neither loss nor impairment of its subrogation rights if it is not permitted to intervene.
The plaintiff-employee in this action and the workmen's compensation carrier are represented by the same lawyer, and the carrier has not alleged, either expressly or by implication, that its subrogation interests will not be adequately represented. Prior to recovery by the plaintiff, his interests and those of the workmen's...
To continue reading
Request your trial
-
Star Spa Services v. Robert G. Turano Ins. Agency
... 595 F.Supp.2d 519 ... STAR SPA SERVICES, INC., Star Spa Inc., and Stark Spencer Real Estate Partnership, Plaintiffs ... ...
-
Fahnestock v. E. Alliance Ins. Co.
...claims, Eastern and Plaintiffs do not have a shared interest in pursuing the highest possible recovery, see Kelley v. Wolff Petroleum, Inc., 595 A.2d 627, 628 (Pa. Super. Ct. 1991) (citing McGinnis v. United Screw & Bolt Corp., 637 F. Supp. 9, 11 (E.D. Pa. 1985)), because Plaintiffs would b......
-
Luiziaga v. Psolka
...intervention is not appealable. The trial court's order is also not appealable under the prior practice. In Kelley v. Wolff Petroleum, Inc., 407 Pa.Super. 253, 595 A.2d 627 (1991), the Superior Court stated the prior practice as As a general rule, an appeal will not lie from an order denyin......
-
Borden v. NGM Ins. Co.
... ... is the owner of Matthew Borden Heating and Cooling, Inc., an ... air-conditioning and heating business. On August 12, 2017, ... ...