Jo Jo Pizza & Eastern Alliance Ins. Co. v. Larry Pitt & Assoc., P.C. ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jo Jo Pizza and Eastern Alliance :
Insurance Company :
:
v. :
:
Larry Pitt & Associates, P.C., : No. 1162 C.D. 2021
Appellant : Argued: June 23, 2022
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: August 5, 2022
Larry Pitt & Associates, P.C. (Attorney Pitt) appeals from the January
15, 2021, order of the Court of Common Pleas of Dauphin County (trial court) that
found Attorney Pitt in civil contempt for failure to respond to a subpoena issued by
the Workers’ Compensation Judge (WCJ) upon the request of Jo Jo Pizza and
Eastern Alliance Insurance Company (together, Employer). Upon review, we
affirm.
I. Factual & Procedural Background
The underlying facts are not in dispute. Martha Mondragon Garduno
(Claimant) slipped and fell on ice in Employer’s parking lot on February 11, 2016.
Trial Ct. Op., 4/5/21, at 1; Reproduced Record (R.R.) at 32a. Attorney Pitt filed a
workers’ compensation claim petition on her behalf as well as a third-party premises
liability action in the trial court against the owner of the property where Employer
is located. R.R. at 32a. The claim petition was granted by a WCJ in April 2018 and
Claimant began receiving wage loss and medical benefits. Id. at 33a. In December
2018, the WCJ approved a compromise and release agreement (C&R) between the
parties that resolved Claimant’s medical and wage loss claims for $70,000, inclusive
of Attorney Pitt’s 20% attorneys’ fees. Id. at 33a & 49a. The C&R recognized
Employer’s right to subrogation against the property owner to the extent of
Employer’s lien, which included roughly $138,000 for wage losses and $19,000 for
medical costs.
Subsequently, Attorney Pitt began negotiations with Employer to
reduce its lien voluntarily in hopes that the third-party action could be resolved since
it was unlikely that a trial would recover the entire amount of the lien, much less
generate any additional amount that Claimant could recover. R.R. at 33a. Employer
declined to reduce its lien and in anticipation of the risks of a trial, Claimant and
Attorney Pitt signed a new fee agreement increasing Attorney Pitt’s fee to 50% of
any recovery in tort. Id. at 34a.
The third-party action ultimately resolved in January 2020 for $80,000.
R.R. at 34a. In February 2020, Attorney Pitt sent Employer documentation from the
third-party settlement, including a distribution worksheet stating that Attorney Pitt
would receive $40,000 in attorneys’ fees and would pay the remaining $40,000 to
Employer in partial satisfaction of its lien. Employer’s Supplemental Reproduced
Record (S.R.R.) at 45b-46b. Employer, suspicious that Attorney Pitt improperly
diverted amounts from his attorneys’ fees to Claimant that should have been subject
to Employer’s subrogation lien, filed review and modification petitions in April 2020
with the WCJ; the petitions indicated that Employer sought an adjudication by the
2
WCJ as to subrogation credit for the third-party recovery. R.R. at 1a-6a. In
association with these petitions, Employer issued a subpoena, approved by the WCJ,
which asked Attorney Pitt to produce copies of all fee agreements between himself
and Claimant, releases, distribution sheets, and copies of any checks issued by
Attorney Pitt to Claimant. Id. at 34a-35a.
Attorney Pitt refused to respond to the subpoena or participate in
proceedings on Employer’s petitions, writing in a May 2020 letter to the WCJ that
there was no subject matter jurisdiction for Employer’s petitions as Claimant’s
workers’ compensation matter had been fully and finally resolved by the December
2018 C&R. R.R. at 7a-8a & 35a. In response, the WCJ issued a June 2020 letter
explaining that because Employer’s subrogation rights had not yet been
extinguished, the matter remained within the WCJ’s jurisdiction even though the
benefits aspect of the workers’ compensation case had been resolved by the C&R.
R.R. at 35a; S.R.R. at 55b-59b.
Attorney Pitt sent the WCJ another letter in later June 2020,
maintaining that the WCJ had no jurisdiction over the matter and refusing to
participate in any proceedings concerning Employer’s petitions or the subpoena.
R.R. at 9a-10a & 35a. After Attorney Pitt failed to attend a July 2020 hearing, the
WCJ issued an interlocutory order noting Attorney Pitt’s continued noncompliance
with the subpoena and advising Employer of its right to seek enforcement of the
subpoena through the trial court. R.R. at 35a-36a; S.R.R. at 67b. In November 2020,
Employer initiated that process by filing with the trial court a petition for civil
contempt against Attorney Pitt. R.R. at 36a; S.R.R. at 1b-10b.
In a January 6, 2021, hearing before the trial court on Employer’s
contempt petition, Attorney Pitt maintained that the WCJ did not have jurisdiction
3
to address Employer’s petitions and issue the subpoena and added that all required
information concerning the third-party settlement had been provided to Employer.
Id. at 18a-21a. Attorney Pitt acknowledged that Claimant did in fact receive
something from the third-party settlement but averred that any such information was
protected by attorney-client privilege. Id. at 21a-22a & 26a. Employer argued that
any amount received by Claimant was improper and should have been subject to
Employer’s unsatisfied lien. Id. at 24a-25a & 27a.
On January 15, 2021, the trial court issued its order finding Attorney
Pitt in civil contempt for willful noncompliance with Employer’s subpoena, ordering
disclosure of the requested information, and awarding Employer attorneys’ fees and
costs associated with its litigation of the civil contempt petition. R.R. at 30a & 36a.
Attorney Pitt timely filed a notice of appeal to the Superior Court, which transferred
the matter to this Court in September 2021. Jo Jo Pizza & Eastern Alliance Ins. Co.
v. Larry Pitt & Assocs., P.C. (Pa. Super., No. 127 MDA 2021, filed Sept. 15, 2021),
2021 WL 4191943 (unreported). Briefing and argument having been concluded, this
dispute is ripe for determination by this Court.
II. Issues
On appeal, Attorney Pitt asserts that the WCJ lacked subject matter
jurisdiction to address Employer’s petitions and issue the subpoena because the
benefits portion of the workers’ compensation matter concluded two years earlier
when the parties completed the C&R. Further, he contends that the WCJ, an officer
of the executive branch, violated separation of powers principles by “seeking” a
contempt order in the trial court against Attorney Pitt. Finally, he argues that the
attorneys’ fees and costs awarded by the trial court to Employer for the enforcement
4
action were improper because the amounts had not been subject to a hearing where
Attorney Pitt could challenge their reasonableness.
III. Discussion
A. Rule 1925(b) Waiver
In a December 2, 2021, per curiam order, this Court noted that while
Attorney Pitt’s appeal of the trial court’s order was timely, his statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b) (Rule 1925(b) Statement), was filed untimely with the trial court. Order,
12/2/21. We instructed the parties to file supplemental briefing on whether Attorney
Pitt’s untimely Rule 1925(b) Statement should result in waiver of his issues on
appeal. Id.Appellate Rule 1925(b) states that “[i]f the judge entering the order
giving rise to the notice of appeal (“judge”) desires clarification of the errors
complained of on appeal, the judge may enter an order directing the appellant to file
of record in the trial court and serve on the judge a concise statement of the errors
complained of on appeal[.]” Pa.R.A.P. 1925(b). Previously, this Court held that
although an untimely Rule 1925(b) statement could lead to waiver of all issues for
appeal, if the trial court addressed the appellant’s issues in its Rule 1925(a) opinion,
the purpose of Rule 1925(b) was served, and waiver need not be found. In re
Campaign Expense Reports of Michele Corignani, 873 A.2d 790, 794 (Pa. Cmwlth.
2005) (In re Corignani).
However, in Jenkins v. Fayette County Tax Claim Bureau, 176 A.3d
1038 (Pa. Cmwlth. 2018), we explained that In re Corignani was overruled by our
Supreme Court in Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005), and an
appellant that files an untimely Rule 1925(b) statement may be subject to waiver
5
even if the trial court files a Rule 1925(a) opinion addressing the merits of the issues
on appeal. Id. at 1042. Castillo and its progeny have been described as creating a
“bright-line rule” except where the trial court grants a requested extension or where
an appellant can show good cause for noncompliance with the Rule.1 Paluch v.
Beard, 182 A.3d 502, 506 & n.5 (Pa. Cmwlth. 2018); Jenkins, 176 A.3d at 1042-43.
Attorney Pitt acknowledges that he filed his Rule 1925(b) Statement
with the trial court on April 5, 2021, well after the trial court’s February 26, 2021,
deadline. Attorney Pitt’s Supplemental Brief at 5. He presents no good cause for
the untimely filing but maintains that because he sent it directly to the trial court
judge and the judge addressed the issues in his opinion, his error was harmless. Id.
at 11-12 (citing In re Corignani). Employer filed a letter brief stating that it takes
no position on this issue and stated at oral argument that it did not feel a finding of
waiver was necessary. Employer’s Supplemental Brief at 1.
Attorney Pitt’s reliance on In re Corignani is misplaced because, as
explained in Jenkins, that case was overruled in 2005 by Castillo. Thus, we are
constrained to conclude that all issues have been waived. However, because
Attorney Pitt’s appeal itself was timely, this Court is not deprived of jurisdiction
over the matter. Pa.R.A.P. 902; Commonwealth v. Williams, 106 A.3d 583, 587 (Pa.
2014). Therefore, for completeness, we address the merits of Attorney Pitt’s claims.2
1
The record does not indicate that Attorney Pitt requested or was granted an extension by
the trial court.
2
“The general rule is that each court is the exclusive judge of contempt against its process,
and on appeal its action will be reversed only when a plain abuse of discretion occurs.” Ligonier
Township v. Nied, 161 A.3d 1039, 1045 n.4 (Pa. Cmwlth. 2017) (quotation marks and citations
omitted). An abuse of discretion occurs “when the course pursued represented not merely an error
of judgment, but where the judgment is manifestly unreasonable or where the law is not applied
or where the record shows that the action is a result of partiality, prejudice, bias or ill will.” Id.6
B. WCJ Subject Matter Jurisdiction
Section 319 of the Pennsylvania Workers’ Compensation Act (Act),
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710, provides
that where a compensable work-related injury “is caused in whole or in part by the
act or omission of a third party, the employer shall be subrogated to the right of the
employe, his personal representative, his estate or his dependents, against such third
party to the extent of the compensation payable under this article by the employer[.]”
77 P.S. § 671. Our courts have repeatedly held that the employer’s right of
subrogation in workers’ compensation matters is automatic and absolute. Thompson
v. Workers’ Comp. Appeal Bd. (USF&G Co.), 781 A.2d 1146, 1151-53 (Pa. 2001).
Our courts have also held generally that “[t]he courts of common pleas
lack jurisdiction to adjudicate Workers’ Compensation claims including issues
involving subrogation.” Gillette v. Wurst, 937 A.2d 430, 435 (Pa. 2007) (citing
Romine v. Workers’ Comp. Appeal Bd. (CNF, Inc./Potato Sack), 798 A.2d 852, 856-
57 n.10 (Pa. Cmwlth. 2002)); see also Stout v. Workers’ Comp. Appeal Bd.
(Pennsbury Excavating, Inc.), 948 A.2d 926, 931 (Pa. Cmwlth. 2008).3 In Gillette,
our Supreme Court found that while there was “no question” that the employer was
entitled to subrogation under Section 319 of the Act, the dispute had been properly
filed before the trial court in that instance because it entailed a wrongful death cause
of action, which cannot be adjudicated by a WCJ. 937 A.2d at 435-36.
In Romine, the claimant was injured in 1995 and after her claim petition
was granted, she began collecting wage loss benefits. 798 A.2d at 853. While that
3
Gillette is a plurality decision and therefore of limited precedential value. However, its
statement that subrogation issues arising in the workers’ compensation context lie within the
jurisdiction of a WCJ is authoritative, as it was not challenged in either the concurrence or the
dissent. See 937 A.2d at 437-41 (Cappy, C.J., concurring; Baer, J., dissenting).
7
litigation was ongoing, her third-party case resolved in 1999 and although the
employer received payment for past expenditures, it filed a review petition with a
WCJ to adjudicate its rights to future benefits. Id. at 854. The WCJ denied the
petition on the basis that the trial court could resolve questions concerning the
workers’ compensation subrogation lien. Id. at 854-55. The Workers’
Compensation Appeal Board (Board) reversed and remanded, stating that the trial
court “did not have the authority to determine [the employer’s] rights pursuant to the
Act and, consequently, it lacked jurisdiction to eliminate or modify [the employer’s]
subrogation rights.” Id. at 855.
Although this Court ultimately quashed the appeal in Romine because
the Board’s order was interlocutory, we approved of the Board’s decision on the
merits, quoting it at length:
[T]he WCJ erred as a matter of law in finding that [the trial
judge] had jurisdiction to deny [the employer] rights it had
under the Act as to the subrogation at issue. . . . Clearly
[the trial judge], while he may have had authority to
approve a settlement entered into by all the parties to the
third party action other than [the employer], did not have
the authority to determine whether [the employer] had or
did not have certain rights under the Act. . . . While the
WCJ may not have authority to examine allocations of
third-party settlements, at least as to a wife’s consortium
claim, likewise a Court of Common Pleas has no
jurisdiction to determine whether [an employer] has any
subrogation interest arising under the Act. A WCJ is
vested with the authority to determine questions of
subrogation, the Court of Common Pleas is not.
Romine, 798 A.2d at 856 n.10 (emphasis added).
In Stout, the employer filed a review petition in the claimant’s ongoing
workers’ compensation matter to assert its subrogation lien against the claimant’s
third-party settlement from the related products liability case. 948 A.2d at 928-29.
8
The claimant asked the WCJ to stay the employer’s review petition pending the
disposition of a separate case alleging abuse of process by employer, which the
claimant alleged had acted in bad faith during the premises liability matter. Id. The
WCJ declined to stay the matter, closed the record, and awarded the employer a lump
sum from the claimant’s third-party settlement and a credit for ongoing benefits paid
to the claimant. Id. at 929. The Board affirmed, stating that “the WCJ has sole
jurisdiction to determine subrogation under the Act.” Id. We agreed, concluding
that “a determination of whether an employer or its insurer is entitled to subrogation
falls within the exclusive jurisdiction of the workers’ compensation authorities”;
therefore, staying the workers’ compensation matter during pendency of the matter
pending in the trial court would not have been proper. Id. at 931 (citing Romine).4
However, Attorney Pitt argues that the WCJ here no longer had subject
matter jurisdiction to entertain Employer’s 2020 modification and review petitions
concerning the subrogation dispute or to issue Employer’s subpoena because the
workers’ compensation case had been resolved via C&R in 2018, which according
to Attorney Pitt, “extinguished” the WCJ’s jurisdiction over any further matters
between the parties. Attorney Pitt’s Brief at 11-13. Attorney Pitt recognizes the
general authority of a WCJ to adjudicate an employer’s right to subrogation and the
amount of a lien but avers that neither Employer’s right to subrogation nor the lien
amount was in dispute and that Claimant had complied with the disclosure
4
We recognize that in Wilson v. Travelers Casualty and Surety Company, 88 A.3d 237(Pa. Cmwlth. 2013), this Court indicated that jurisdiction over the employer’s right to subrogation
could lie with the trial court. Id. at 247 n.12. However, that case involved “unusual” facts and
conflicting orders from the trial court and the WCJ, which are not present here. Id. at 250.
Moreover, Attorney Pitt has not argued that Employer should have raised its concerns to the trial
court rather than to the WCJ. Wilson is therefore not germane in this case.
9
requirements of the Act after resolving the third-party matter, so there was no basis
for the WCJ to reopen the case and assume jurisdiction. Id. at 14-16.
Employer responds that even though the benefits aspect of Claimant’s
case was resolved by the C&R in 2018, Employer’s subrogation interest remained
open and active while the third-party case proceeded; therefore, the WCJ retained
jurisdiction over any issues that arose with regard to the subrogation, as stated in
Gillette and Romine. Employer’s Br. at 11-15. Employer notes that because of its
concern that Attorney Pitt improperly diverted funds from the third-party case to
Claimant that were subject to Employer’s lien, it sought to adjudicate the amount it
received; accordingly, this dispute falls within the WCJ’s jurisdiction. Id. at 15-16
& 21.
The trial court agreed that the point of Employer’s petitions to the WCJ
was to resolve its rights to the full extent (or as much as possible) of its subrogation
lien, which lies within the WCJ’s jurisdiction pursuant to Romine and Gillette. Trial
Ct. Op. at 6-8. As such, Employer’s subpoena calling for Attorney Pitt to disclose
all documentation concerning the distribution of the third-party settlement funds and
any potential payments made to Claimant out of those proceeds was proper, as was
Employer’s subsequent enforcement action that led to the trial court’s finding
Attorney Pitt in civil contempt for failing to comply with the subpoena. Id.
We agree with the trial court. Attorney Pitt seeks to limit the WCJ’s
jurisdictional authority over subrogation matters to instances where there remain
open and active workers’ compensation matters before the WCJ. Nothing in the Act
suggests this is a viable interpretation of the law. Section 319 of the Act, which
governs subrogation, provides that where a third party is responsible for a work-
related injury, the employer “shall be” subrogated to the injured employee’s rights
10
against the third party to the extent of the employer’s lien. 77 P.S. § 671. Once that
lien is satisfied, only then can any excess remaining recovery proceeds be paid to
the claimant. Id. (stating that “[a]ny recovery against such third person in excess of
the compensation theretofore paid by the employer shall be paid forthwith to the
employe”). The broad and clear language of Section 319 supports an employer’s
subrogation rights to third-party recoveries, and those rights would not be viable
without the legal means to protect and enforce them until they are extinguished,
either by payment in full of the lien or a waiver or compromise by the employer of
the amount of the lien. See Growth Horizons, Inc. v. Workers’ Comp. Appeal Bd.
(Hall), 767 A.2d 619, 621-22 (Pa. Cmwlth. 2001).
Moreover, claimants and their counsel may not manipulate attorneys’
fees in a manner that would negatively affect the employer’s subrogation lien. Good
Tire Serv. v. Workers’ Comp. Appeal Bd. (Wolfe), 978 A.2d 1043, 1048 (Pa. Cmwlth.
2009) (stating that “while we do not impugn counsel’s motives here, were we to
accept [c]laimant’s argument, we would open the door to sham fee agreements
specifically calculated to avoid the law regarding employers’ subrogation rights”).
This is so even if counsel views the attorneys’ fees as funds that may be distributed
to the claimant as a gift and to further the salutary purposes of the Act, because the
Act allows no equitable exceptions to the employer’s right of subrogation. Id. (citing
Thompson, 781 A.2d at 1151).5
5
At the January 6, 2021, hearing before the trial court, Attorney Pitt stated that during
previous negotiations, Employer’s subrogation supervisor suggested that while Claimant might
not receive any direct recovery from the third-party action, Attorney Pitt could split his fee with
Claimant. R.R. at 22a & 34a. If, as Employer alleges, this is what Attorney Pitt did, it would
clearly have been improper. As an officer of the court, counsel has the duty of competence, which
includes knowledge of the relevant law. Pa.R.P.C. 1.1 (stating that a lawyer “shall provide
competent representation to a client. Competent representation requires the legal knowledge, skill,
11
Pursuant to Romine, Gillette, and Stout, jurisdiction over workers’
compensation subrogation questions and issues, including not just whether there is
a right to subrogation but as to the extent of that right, remains with the WCJ.
Realistically, however, the employer’s subrogation rights can only become viable
upon actual recovery by the injured employee of third-party settlement proceeds.
Pa. Mfrs. Ass’n Ins. Co. v. Wolfe, 626 A.2d 522, 526 (Pa. 1993). This means that
the employer’s right to subrogation does not actually depend on the associated
workers’ compensation matter being open and active when the third-party recovery
becomes available. Moreover, settlement has been encouraged as a matter of policy
since the C&R mechanism was made part of the Act in 1996.6 Lehigh Specialty
Melting, Inc. v. Workers’ Comp. Appeal Bd. (Bosco), 260 A.3d 1053, 1062 (Pa.
Cmwlth. 2021) (quoting Stroehmann Bakeries v. Workers’ Comp. Appeal Bd.
(Plouse), 768 A.2d 1193, 1196 (Pa. Cmwlth. 2001)). Workers’ compensation law
in Pennsylvania is a balance of competing employer and employee interests, and if
employers perceive that they will lose their rights to protect their subrogation liens
by settling an underlying workers’ compensation matter, they will be less likely to
do so, thwarting the policy favoring settlement as well as the balance of interests.
See Kramer v. Workers’ Comp. Appeal Bd. (Rite Aid Corp.), 883 A.2d 518, 535 (Pa.
2005).
Here, Claimant sustained her injury in 2016 and commenced parallel
workers’ compensation and third-party premises liability actions. Trial Ct. Op. at 1;
R.R. at 32a. In late 2018, the parties found it mutually beneficial to resolve the
thoroughness and preparation reasonably necessary for the representation.”); see also Off. of
Disciplinary Counsel v. Baldwin, 225 A.3d 817, 837-38 (Pa. 2020).
6
See Act of June 24, 1996, P.L. 350.
12
workers’ compensation matter in order to make Claimant whole as to the benefits
she was due to receive. R.R. at 33a. At that point, Employer’s lien against the
property owner solidified into the amount of roughly $157,000. Id. Because
Employer declined to compromise its lien prior to settlement of the third-party case,
it did not concede its right to receive the full amount of its lien, or as much as possible
of that amount. Id.; see also Growth Horizons, Inc., 767 A.2d at 621-22. Nor, as
we conclude above, was Employer’s right to seek enforcement of the full extent of
its lien (or as much as possible) by a WCJ extinguished when Employer resolved
Claimant’s benefits via the 2018 C&R. As such, the WCJ did not err in accepting
jurisdiction over Employer’s petitions or in issuing Employer’s subpoena, the intent
of which was to ensure that Claimant and Attorney Pitt had not manipulated
attorneys’ fees to thwart Employer’s right to the fullest possible satisfaction of its
lien, particularly in light of Attorney Pitt’s concession on the record during the
January 6, 2021, hearing that Claimant had received “some” money from the third-
party settlement. R.R. at 22a. By extension, the trial court did not err or abuse its
discretion in granting Employer’s petition for civil contempt against Attorney Pitt
for his failure to comply with the subpoena.7, 8
7
The Superior Court’s order transferring the matter to this Court did not specifically
address the WCJ’s jurisdiction to address Employer’s petitions and subpoena but noted that the
appeal arose out of a workers’ compensation matter and was more suitable for adjudication by this
Court. To the extent Attorney Pitt’s arguments may be read as suggesting Employer should have
commenced this action in the trial court rather than before a WCJ, the Superior Court’s order
indicated that approach would not have been appropriate.
8
Attorney Pitt also argues that Employer’s modification and review petitions were
improper, that the information Employer seeks is protected by attorney-client privilege, and that
the trial court erred in finding Attorney Pitt in civil contempt because the record includes no
evidence of wrongful intent on his part. Attorney Pitt’s Br. at 12-13 & 16-19. The Rule 1925(b)
Statement Attorney Pitt provided to the trial judge did not raise these issues and was limited only
to the assertion that the WCJ lacked jurisdiction to address Employer’s petitions. Attorney Pitt’s
13
C. Separation of Powers
The Pennsylvania Constitution grants our Supreme Court supervisory
and administrative authority over all state courts as well as the practice of attorneys.
Pa. Const., art. V, § 10(a), (c). The General Assembly is therefore precluded from
exercising powers entrusted to the judiciary. Kremer v. State Ethics Comm’n, 469
A.2d 593, 595 (Pa. 1983). The General Assembly does have the power to
promulgate substantive law through the exercise of its police power but may not
legislate in a manner that interferes with the judiciary, which is a co-equal branch of
government. Commonwealth v. Stern, 701 A.2d 568 (Pa. 1997). This includes
limitations on WCJs, who are appointed members of the executive branch (the
Department of Labor and Industry) rather than the judiciary. See, e.g., Sections
401.1, 422(e), and 435(a) of the Act, added by Act of February 8, 1972, P.L. 736, 77
P.S. §§ 710, 836, & 991(a). Specific to this appeal, while a WCJ has the authority
to issue subpoenas for the production of documents, he or she does not have the
power to enforce compliance with them. Rather, pursuant to Section 436 of the Act,
added by Act of February 8, 1972, P.L. 25, 77 P.S. § 992, only a court of common
pleas has the power to enforce a WCJ’s subpoena.9 Stover v. Workmen’s Comp.
Appeal Bd. (SCI Graterford), 671 A.2d 1217, 1219 (Pa. Cmwlth. 1996).
additional issues were therefore waived for this additional reason. Pa.R.A.P. 302(a) (stating that
“[i]ssues not raised in the trial court are waived and cannot be raised for the first time on appeal.”);
Creighan v. Workmen’s Comp. Appeal Bd. (Mellon Stuart Corp.), 624 A.2d 680, 682 (Pa. Cmwlth.
1993) (holding that Rule 302(a) applies to workers’ compensation matters).
9
Section 436 provides:
[Any WCJ] shall have the power to issue subpoenas . . . . Any
witness who refuses to obey such summons or subpoenas . . . may
be punished as for contempt of court, and for this purpose, an
application may be made to any court of common pleas within
14
Attorney Pitt argues that the WCJ, by issuing Employer’s subpoena and
advising Employer of its right to seek enforcement through the trial court, engaged
in “an attempt by a member of the executive branch to compel a member of the
judicial branch to act” in violation of separation of powers principles. Attorney Pitt’s
Br. at 19-22. Employer responds that the trial court correctly found that the WCJ’s
actions were properly limited to notifying the parties of Employer’s legal right to
seek enforcement and did not overstep the WCJ’s authority. Employer’s Br. at 26-
27; Trial Ct. Op. at 9-10; R.R. at 40a-41a.
We agree with Employer. The WCJ’s June 15, 2020, letter to Attorney
Pitt regarding Attorney Pitt’s noncompliance with Employer’s subpoena is of record.
S.R.R. at 55b-60b. After setting forth the case background and the legal reasons
why Attorney Pitt was compelled to comply with the subpoena, the WCJ stated that
“[f]ailure to comply with this valid records request may lead to Employer pursuing
the enforcement remedies as set forth in Section 436 of the Act.” Id. at 60b. After
Attorney Pitt again refused to comply, the WCJ issued an interlocutory order on July
17, 2020, memorializing that Attorney Pitt had been advised of Employer’s right to
engage in enforcement proceedings but had not yet complied with the subpoena and
stating that Employer was to notify the WCJ of any enforcement proceedings it
elected to pursue. Id. at 67b.
The record therefore does not support Attorney Pitt’s argument that the
WCJ ordered Employer to commence subpoena enforcement proceedings in the trial
court. Nor does the mere fact that the WCJ advised both parties of Employer’s right
to pursue such proceedings, up to and including Employer’s petition for civil
whose territorial jurisdiction the offense was committed, for which
purpose such court is hereby given jurisdiction.
77 P.S. § 992.
15
contempt against Attorney Pitt, mean that the WCJ thwarted or intervened in the
Supreme Court’s role in governing our state courts and practicing attorneys. We
therefore find that the WCJ did not violate separation of powers principles and the
trial court did not err or abuse its discretion in agreeing with the WCJ on this issue.10
IV. Conclusion
In light of the foregoing, Attorney Pitt’s arguments on appeal are both
waived and meritless. We therefore affirm the trial court’s January 15, 2021, order.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
10
Attorney Pitt’s final issue asserts that the trial court erred in assessing $3,428 in legal
fees and $427 in costs to be awarded to Employer for its success in the enforcement proceedings
because those fees and costs were never subject to a hearing on the record where Attorney Pitt
could challenge them. Attorney Pitt’s Br. at 22. The trial court agreed with Attorney Pitt and
stated that “upon re-acquisition of jurisdiction [after conclusion of this appeal], this Court will
provide [Attorney Pitt] an opportunity to fully adjudicate this issue.” Trial Ct. Op. at 10; R.R. at
41a. We therefore need not address the merits of this issue.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jo Jo Pizza and Eastern Alliance :
Insurance Company :
:
v. :
:
Larry Pitt & Associates, P.C., : No. 1162 C.D. 2021
Appellant :
ORDER
AND NOW, this 5th day of August, 2022, the January 15, 2021, order
of the Court of Common Pleas of Dauphin County, which found Larry Pitt &
Associates, P.C. in civil contempt for failure to comply with a lawful subpoena
issued by a Workers’ Compensation Judge, is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge