Maginley v. Robert J. Elliott, Inc.

Decision Date27 September 1985
Citation345 Pa.Super. 582,498 A.2d 977
PartiesRichard A. MAGINLEY, Sr. and Helen E. Maginley, his wife v. ROBERT J. ELLIOTT, INC. and Frederick Poultney. Appeal of ROADWAY EXPRESS. 01476 Phila. 1983
CourtPennsylvania Superior Court

David W. Knauer, Stroudsburg, for appellant.

Ronald J. Mishkin, Stroudsburg, for Maginley, appellees.

Paul A. Barrett, Scranton, for Elliott, Inc., appellees.

Before WIEAND, DEL SOLE and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Monroe County denying Roadway Express' petition to intervene. We remand.

The facts reveal that Roadway Express' employee, Richard A. Maginley, sustained injuries when the vehicle he was operating collided with a vehicle driven by Frederick Poultney. As a result of the accident, Maginley received $20,000 in workmen's compensation.

Despite the workmen's compensation payment, on July 15, 1982, almost fifteen months after the accident, Maginley and his wife brought suit against Poultney and his employer, Robert J. Elliott, Inc., to recover for the damages he incurred. On May 23, 1983, Roadway Express petitioned to intervene in this third-party litigation. However, the trial court denied the requested intervention on the grounds that: 1) Roadway Express had no right of subrogation; 2) the petition was filed two weeks prior to the third-party cause of action being listed for trial; and 3) intervention would jeopardize a resolution of the third-party suit. This appeal followed.

Initially, we treat the appealability of the order in question, for "it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction." Marcus v. Diulus, 242 Pa.Super. 151, 157, 363 A.2d 1205, 1208 (1976) (Citation omitted).

Albeit, in general, an appeal from an order refusing a petition to intervene is considered interlocutory, our courts have recognized that in those instances where the practical consequence of the order is to deny the petitioner relief to which he is entitled and which he can secure in no other way, the order has been held to be appealable. Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa.Super. 279, 446 A.2d 614 (1982).

At bar, this translates into an observation that since the Workmen's Compensation Act (77 P.S. § 671) entitles an employer to "be subrogated to the right of the employe" to the extent of compensation it paid as a result of an injury caused by a third-party, the employer's failure to act timely in bringing a separate cause of action against the third-party will result in its inability to recoup monies paid to his employee for a compensable injury sustained at the hands of the third-party. In other words, unless Roadway Express' petition to intervene is granted, any separate suit against the third-party tortfeasor would be barred by the two-year statute of limitations covering personal injuries. 42 Pa.C.S.A. § 5524(2).

Therefore, given the facts here, the practical effect of the order denying intervention is to preclude the employer from securing relief to which it is entitled and which it cannot otherwise obtain. Accordingly, we hold the order to be appealable.

However, on the present record, we are unable to determine whether the trial court abused its discretion in denying Roadway Express' petition to intervene under the auspices of Pa.R.Civ.P. 2329. Thus, we need to remand. See Johnson v. Keystone Ins. Co., 299 Pa.Super. 187, 445 A.2d 517 (1982).

Although the trial court's denial of Roadway Express' petition to intervene is subject to being interpreted as "bottomed" on case law that subsequently was overruled (see discussion infra ), we still have the power to affirm the denial on grounds other than those relied upon by the trial court. See McDevitt v. Terminal Warehouse Co., 304 Pa.Super. 438, 455 n. 7, 450 A.2d 991, 1000 n. 7 (1982). For instance, Roadway Express claims to have "justifiably believed" that its subrogation interest would be honored by the third-party tortfeasor. Yet, we are presented with no insight as to what such a "belief" was "bottomed upon". Even though a hearing on the petition to intervene was held, the record of what happened there, if transcribed, was not forwarded to this Court. Therefore, we believe we should remand for the securement of such testimony to determine what, if anything, occurred at that proceeding. And, if a review of the record reveals that Roadway Express proffered no justification for its delay in acting, it would be held to have waived such a claim. See Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa.Super. 83, 467 A.2d 1139 (1983) (Concurring Opinion by POPOVICH, J.).

Further, we hasten to mention that nowhere is it written that "a valid right of subrogation" cannot be refused when presented in the form of an "intervention petition", regardless of the intervenor's unexplained delay in not acting sooner. Ergo, Roadway Express' unsubstantiated assertion of how it was led to believe its subrogation claim would be honored runs head-on into the undue delay criterion warranting the denial of its intervention petition. The trial court stated as much in its opinion to us, which, interestly enough upon examination, renders questionable the view espoused by some that the trial court's ruling was predicated upon subsequently overruled case law; to-wit:

It is true that VESPAZIANI V. INSANA, [293 PA.SUPER. 117, 437 A.2D 1234 (1981)1 ], is presently on appeal. That does not affect our obligation to defer completely to the pronouncement of the Superior Court. Furthermore, the status of that appeal in no way affects the validity of Brunelli v. Farelly Bros., [266 Pa.Super. 23, 402 A.2d 1058 (1979) ].

Even if these cases' reasonings were to be rejected, Petitioner still would not be entitled to intervene in the case at bar, due to its inexcusable delay in filing its petition to intervene. It did not file the petition until May 24, 1983, only two weeks before trial.

(Trial Court Opinion at 9-10) (Emphasis added)

The point we wish to make is that a right to seek intervention is not the equivalent of a right to intervene. The former is provided for in the Rules of Civil Procedure, while the latter is regulated by a review of the facts under an abuse of discretion standard and is not to be granted pro forma merely because of one's filing of a petition to intervene. Toward that end, we would direct that the hearing conducted to assess Roadway Express' petition to intervene be transcribed and forwarded to this Court so that we can make a jurisprudentially sound decision regarding the trial court's actions. See Pa.R.App.P. 1926 (" * * * If anything material to either party is omitted from the record ... the appellate court of its own initiative [ ] may direct that the omission ... be corrected, and if necessary that a supplemental record be certified and transmitted."); see also Commonwealth v. Rivera, 339 Pa.Super. 242, 488 A.2d 642 (1985) (en banc).

We hereby remand for completion of the record. Jurisdiction is retained.

WIEAND, J., files a concurring and dissenting opinion.

DEL SOLE, J., files a concurring opinion.

DEL SOLE, Judge, concurring:

While I concur in the result reached by my colleague, Judge Popovich, in remanding this matter to the trial court for the completion of the record, I am not prepared to join that portion of the analysis expressed in both the majority and dissenting opinions which seem to limit the employer's right of recovery to a claim against a third-party tortfeasor.

First, had the employee recovered sums in a settlement which represented subrogatable compensation payments, the employer would not be barred from filing a claim against the employee to recoup its subrogation.

In addition, while the employer in this case has made averments that it "justifiably believed" that its subrogation interests would be honored by the third party, we have no record to substantiate the averment. It could very well be that the third party, through its actions, may have waived the defense of statute of limitations. Therefore, it is not clear to me on this record whether the denial of the employer's petition to intervene is in fact a final order which would bar ultimate recovery or whether the employer may be free to attempt to recover its subrogated interests either from the employee or from the third party.

In my view, the problems presented in this case have been occasioned by the amendments to the Worker's Compensation Act which still allow an employer a subrogated right against third party recovery but prevents the employer from being joined in the litigation in order to have the employer's percentage of negligence determined.

WIEAND, Judge, concurring and dissenting:

The issue in this appeal is whether an employer may intervene in an employee's third party action to preserve a subrogation claim for workmen's compensation paid to the employee. The trial court refused to permit intervention (1) because it determined that the employer's right of subrogation had been abrogated by the Pennsylvania No-fault Motor Vehicle Insurance Act 1, (2) because intervention would have jeopardized settlement of the action between the employee and third party wrongdoer and (3) because the employer waited too long before moving to intervene. I agree with the majority that the first two reasons given by the trial court were erroneous. In my judgment the third reason was also inadequate. Therefore, I would reverse and remand to allow such intervention.

Richard A. Maginley, an employee of Roadway Express, Inc., was injured when the truck which he was driving came into collision with a vehicle being operated by Frederick Poultney on Interstate Route 80 in Monroe County on March 26, 1981. Maginley was paid workmen's compensation in the amount of $20,000.00 (Trial court opinion at 3). On July 15, 1982, Maginley and his wife brought a third party action...

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    ...to which an intervenor is entitled and which he can obtain in no other way, the order is appealable. See: 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 This is such a ......
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