W.T. Swierbinski v. UEGF

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Walter T. Swierbinski, :
Petitioner :
:
v. : No. 26 M.D. 2021
:
Uninsured Employers Guaranty Fund, :
Respondent : Submitted: September 24, 20211
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge2
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 20, 2022
Before this Court is the application for summary relief (Application) filed by
Walter T. Swierbinski (Petitioner),3 which seeks mandamus relief by means of an
order compelling the Uninsured Employers Guaranty Fund (Fund) to pay Petitioner
workers’ compensation benefits awarded by a workers’ compensation judge (WCJ)
on September 28, 2020. Because Petitioner has failed to establish the elements
required for mandamus relief, we deny and dismiss the Application.
1
A related matter, Swierbinski v. Scranton Restaurant Supply (Workers’ Compensation
Appeal Board), was filed under this Court’s appellate jurisdiction on August 31, 2021, at No. 971
C.D. 2021. This Court initially intended to render a decision once the other matter was resolved.
However, since the related matter has not yet been resolved, and our decision herein will not affect
this Court’s eventual disposition of the other Swierbinski matter, we elected to file the instant
opinion.
2
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
3
Petitioner styled his pleading as a “Complaint in Mandamus.” Given that he seeks to
challenge government action, the matter was docketed as a petition for review (PFR) invoking this
Court’s original jurisdiction.
I. Background
On October 10, 2017, Petitioner sustained a work injury to his left wrist, right
elbow, and right shoulder while employed by Scranton Restaurant Supply
(Employer) as a restaurant equipment repairperson. PFR, Ex. A. Petitioner filed a
claim petition with the Bureau of Workers’ Compensation (Bureau) on July 16,
2019. Id. Subsequently, as Employer did not carry workers’ compensation
insurance, Petitioner filed a second claim petition naming the Fund on August 28,
2019.4 Id. In a September 28, 2020 decision, the WCJ directed that the Fund pay
wage loss benefits to Petitioner in the amount of $453.33 per week, effective October
10, 2017, and ongoing, with a credit for payments in lieu of compensation Petitioner
received from Employer. Id.
The Fund appealed the WCJ’s decision to the Workers’ Compensation Appeal
Board (Board) and filed a petition for supersedeas, which the Board denied on
October 29, 2020. PFR, Ex. B. On February 11, 2021, Petitioner filed his PFR
seeking the Fund’s compliance with the WCJ’s order.
Petitioner’s PFR alleges that the Fund has “failed and refused” to comply with
the WCJ’s order to pay Petitioner compensation. PFR ¶ 9. On February 24, 2021,
4
Pursuant to Section 1602(c) of the Workers’ Compensation Act (Act):
[The Fund was established] for the exclusive purpose of paying to
any claimant or his dependents workers’ compensation benefits due
and payable under this act . . . and any costs specifically associated
therewith where the employer liable for the payments failed to
insure or self-insure its workers’ compensation liability . . . .
Act of June 2, 1915, P.L. 736, as amended, added by the Act of November 9, 2006, P.L. 1362, 77
P.S. § 2702(c).
2
Petitioner filed the Application,5 asserting that he has been unable to work since the
October 10, 2017 work injury occurred and that the Fund’s failure to “perform its
ministerial duty” and pay Petitioner compensation as ordered has caused him great
hardship. Application ¶ 10. Accordingly, Petitioner requested judgment in his favor
and an order directing that the Fund pay Petitioner’s compensation as awarded by
the WCJ.
Subsequent to Petitioner’s filing of the PFR, the Board issued an August 24,
2021 order reversing the WCJ on the basis that Petitioner’s claim against the Fund
was barred by Section 1603(b) of the Act.6 See Swierbinski v. Scranton Rest. Supply,
(Pa. Workers’ Comp. Appeal Bd., No. A20-0821, filed Aug. 24, 2021), 2021 WL
4125565. As indicated herein, Petitioner’s appeal of the Board’s order is pending
before this Court.
II. Issue
Petitioner argues that he is entitled to summary relief as no issues of material
fact exist regarding the Fund’s obligation to pay his workers’ compensation benefits
and the Board denied the Fund’s request for supersedeas.7
5
Petitioner styled his application for summary relief as a “motion for peremptory judgment
and expedited hearing.” Because this matter is governed by the Rules of Appellate Procedure for
actions within this Court’s original jurisdiction, it shall be treated as an application for summary
relief pursuant to Pa.R.A.P. 1532(b).
6
Section 1603(b) of the Act was added by the Act of November 9, 2006, P.L. 1362, 77
P.S. § 2703(b). It provides that an injured worker must notify the Fund within 45 days after he is
advised that the employer was uninsured. Compensation will not be paid if the employee has not
notified the Fund within the timeframe specified.
7
The Fund failed to respond to this matter and has since been precluded from filing a brief
by order of this Court dated September 9, 2021.
3
III. Discussion
An application for summary relief is evaluated according to the standards for
summary judgment. Myers v. Com., 128 A.3d 846, 849 (Pa. Cmwlth. 2105). An
application for summary relief may be granted if a party’s right to judgment is clear
and no issues of material fact are in dispute. Id. To be entitled to summary relief,
the parties must demonstrate the nonexistence of any genuine issue of material fact.
Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, (Pa. 1979).
Mandamus exists to compel the official performance of a ministerial act or
mandatory duty. Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d
610, 627 (Pa. 2010). This Court may issue a writ of mandamus where: (1) the
petitioner has a clear legal right to relief; (2) the responding public official has a
corresponding duty; and (3) no other adequate or appropriate remedy exists at law.8
Id.Petitioner argues that he is entitled to relief because the WCJ awarded him
workers’ compensation benefits and the Board denied the Fund’s petition for
supersedeas. Petitioner suggests that, by failing to pay the benefits due Petitioner,
the Fund is effectuating its own supersedeas. Therefore, Petitioner seeks an order
from this Court directing the Fund to pay Petitioner the workers’ compensation
benefits due, effective October 10, 2017, as ordered by the WCJ.
8
Section 761(a)(1) of the Judicial Code provides that this Court has original jurisdiction
of all civil actions or proceedings “[a]gainst the Commonwealth government, including any officer
thereof, acting in his official capacity[,]” with the exception of certain matters not implicated here.
The Commonwealth government, as defined in Section 102 of the Judicial Code, 42 Pa.C.S. § 102,
includes “departments, boards, commission, authorities, and officers and agencies of the
Commonwealth.” The Fund is maintained as a separate fund in the State Treasury and
administered by the Secretary of Labor and Industry of the Commonwealth; therefore, it is
encompassed within the term “Commonwealth government.”
4
We disagree that Petitioner has a right to the relief requested, as he cannot
meet the requirements for mandamus relief. Specifically, Petitioner has an adequate
remedy at law, pursuant to Section 428 of the Act, 77 P.S. § 921, which provides as
follows:
Whenever the employer, who has accepted and complied
with the provisions of [Section 305, 77 P.S. § 501], shall
be in default in compensation payments for thirty days or
more, the employe or dependents entitled to compensation
thereunder may file a certified copy of the agreement and
the order of the department approving the same or of the
award or order with the prothonotary of the court of
common pleas of any county, and the prothonotary shall
enter the entire balance payable under the agreement,
award or order to be payable to the employe or his
dependents, as a judgment against the employer or insurer
liable under such agreement or award. Where the
compensation so payable is for a total and permanent
disability, the judgment shall be in the amount of thirty
thousand dollars less such amount as the employer shall
have actually paid pursuant to such agreement or award.
Such judgment shall be a lien against property of the
employer or insurer liable under such agreement or award
and execution may issue thereon forthwith.
While the Fund is not subject to the provisions of Section 440 of the Act,9
relating to penalties and unreasonable contest fees, the Fund is maintained “for the
exclusive purpose of paying to any claimant[,] or his dependents[,] workers’
compensation benefits due and payable under [the Act[.]”10 Therefore, in the
9
Added by the Act of February 8, 1972, P.L. 25, 77 P.S. § 996.
10
Section 1602(c) of the Act, added by the Act of November 9, 2006, P.L. 1362, 77 P.S. §
2702(c).
5
absence of language to the contrary, we conclude that Section 428 of the Act is
applicable to the Fund.
While the material facts do not appear to be in dispute, Petitioner’s right to
relief is not clear, as he cannot meet the third element required for mandamus relief.
Accordingly, we deny the Application.
__________________________________
ELLEN CEISLER, Judge
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Walter T. Swierbinski, :
Petitioner :
:
v. : No. 26 M.D. 2021
:
Uninsured Employers Guaranty Fund, :
Respondent :
ORDER
AND NOW, this 20th day of October, 2022, the application for summary relief
filed by Walter T. Swierbinski is hereby DENIED and DISMISSED.
__________________________________
ELLEN CEISLER, Judge