Jo Jo Pizza v. Larry Pitt & Assoc. ( 2021 )

J-A23038-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JO JO PIZZA AND EASTERN : IN THE SUPERIOR COURT OF
ALLIANCE INSURANCE COMPANY : PENNSYLVANIA
:
:
v. :
:
:
LARRY PITT & ASSOCIATES, P.C. :
: No. 127 MDA 2021
Appellant :
Appeal from the Order Entered January 15, 2021
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2020-CV-11402-MD
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2021
Appellant Larry Pitt & Associates, P.C. appeals from the Order entered
in the Court of Common Pleas of Dauphin County on January 15, 2021, finding
it in contempt for failing to comply with a subpoena issued by a Worker’s
Compensation Judge (WCJ) in a case which arose as part of a worker’s
compensation proceeding. For the following reasons, we transfer this matter
to the Commonwealth Court.
Briefly, the WCJ had directed Appellant to provide certain materials to
Appellees Jo Jo Pizza and Eastern Alliance Insurance Co. in connection with
litigation in a worker’s compensation matter. Appellees filed a petition in the
trial court on November 20, 2020, seeking an adjudication of civil contempt
for Appellant’s failure to respond to a subpoena. Following a hearing, the trial
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A23038-21
court directed Appellant to comply with the WCJ's subpoena and also assessed
upon him the costs and fees incurred by Appellees due to its failure to comply
with the subpoena. Appellant thereafter filed the instant, timely appeal.
In its appellate brief, Appellant presents the following three issues for
this Court’s review:
A. Whether the [c]ourt failed to consider that the Workers'
Compensation Judge lacked subject matter jurisdiction and
thereby lacked the authority to issue a subpoena. The cases
cited by Appellees asserting authority to their actions were
inapplicable in this instance where the work injury claim had
been resolved two years earlier?
B. Whether the [c]ourt failed to consider that it is an error of
law for the Workers' Compensation Judge to seek a
contempt order against an attorney and law firm where the
Judge is an officer of the Executive Branch and has no direct
jurisdiction over a member of the Judiciary Branch based on
the separation of powers provisions of the Pennsylvania
Constitution?
C. Whether the [c]ourt erred as am atter of law when assessing
legal fees and costs against appellant where the fees and
costs were not entered into the record, were not provided
prior to the hearing detailing the costs and fees, and where
no separate hearing was held to permit [A]ppellant to
challenge the reasonableness and necessity of those fees
and costs?
Brief for Appellant at 4.
Appellant posits that this Court has jurisdiction of the instant matter
pursuant to 42 Pa.C.S. § 742 which reads as follows:
§ 742. Appeals from courts of common pleas
The Superior Court shall have exclusive appellate
jurisdiction of all appeals from final orders of the courts of
common pleas, regardless of the nature of the controversy or the
-2-
J-A23038-21
amount involved, except such classes of appeals as are by any
provision of this chapter within the exclusive jurisdiction of the
Supreme Court or the Commonwealth Court.
However, this appeal is from a contempt order which arises as a result
of a worker’s compensation action. We note that appeals from decisions in
worker’s compensation actions fall under the jurisdiction of the
Commonwealth Court. See Kurtz v. W.C.A.B. (Waynesburg Coll.), 794
A.2d 443, 447 (Pa.Commw. Ct. 2002) (citation omitted) (stating
Commonwealth Court’s standard of review in a worker’s compensation case is
limited to determining whether necessary findings of fact were supported by
substantial evidence, whether constitutional rights were violated, or whether
an error of law was committed).
In fact, both parties cite to and rely upon decisions of the
Commonwealth Court in support of their arguments in their respective briefs,
as does the trial court in its Rule 1925(a) Opinion. Moreover, the trial court
agrees with Appellant’s position “that resolution of subrogation rights is within
the sole jurisdiction of the WCJ.” See Trial Court Opinion, filed April 5, 2021,
at 6. Also, Appellees observe that “[a]s represented in the Petition, the
matter was and remains in litigation in the Pennsylvania Workers’
Compensation System.” Thus, we find that the Commonwealth Court has
jurisdiction over this appeal. See Kurtz, supra.Accordingly, we transfer this appeal to the Commonwealth Court. See
Pa.R.A.P. 751(a) (stating: “If an appeal or other matter is taken to or brought
-3-
J-A23038-21
in a court or magisterial district which does not have jurisdiction of the appeal
or other matter, the court or magisterial district judge shall not quash such
appeal or dismiss the matter, but shall transfer the record thereof to the
proper court of this Commonwealth, where the appeal or other matter shall
be treated as if originally filed in transferee court on the date first filed in a
court or magisterial district”).1
Appeal transferred. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2021
____________________________________________
1 In light of the foregoing, the Prothonotary’s Office is directed to remove this
case from the Argue 23-2021 list.
-4-