Wicker, D. v. Korman Services

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENICE WICKER AND LINDY WICKER, IN THE SUPERIOR COURT OF
H/W, PENNSYLVANIA
Appellants
v.
KORMAN SERVICES, INC.,
Appellee No. 948 EDA 2014
Appeal from the Order Entered February 28, 2014
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 0812268-33-2
BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
This is an appeal from an order directing enforcement of a workers’
compensation lien. We affirm.
Lindy and Denice Wicker, husband-and-wife Appellants, filed suit
against Korman Services, Inc. (“Korman”)1 on December 3, 2008. Korman
was responsible for maintenance of the property where Denice Wicker
(“Denice” or “Appellant”) fell at work on June 25, 2007, when she tripped on
“bunched up” floor mats outside of her office. Complaint, 12/3/08, at 1–2;
Answer, 3/16/09, at 1. Denice broke her arm and alleged in the complaint
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1
Korman Commercial Properties, Inc. answered the complaint asserting
that it was incorrectly designated in the complaint as Korman Services and
that it was the entity responsible for maintenance. Answer, 3/16/09, at 1.
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that she likely would require shoulder-replacement surgery. Complaint,
12/3/08, at 3. Denice was injured in the scope of her employment with
American Bread Company (“ABC”), which was insured by American Zurich
Insurance Co. (“Zurich”), the workers’ compensation carrier, Appellee-
Intervenor herein. Petition to Intervene, 3/18/13, at 1–2. Zurich paid
Denice’s medical bills in the amount of $12,241.00. Id.
Appellants and Korman’s insurance carrier agreed to settle the case for
$90,000.00. Petition to Intervene, 3/18/13, at 2. Denice asserts that there
was little litigation activity on the docket because “the case was essentially
tried before the mediator.” Appellants’ Brief at 7. The trial court, as well,
noted an absence of docket activity after the filing of Appellants’ Reply to
New Matter on May 29, 2009. Trial Court Opinion, 4/25/14, at 1. Zurich
sought to intervene on March 18, 2013,2 to enforce its subrogation rights as
ABC’s workers’ compensation insurer pursuant to 77 P.S. § 671,
“Subrogation of employer to rights of employee against third persons.”
Appellants filed a response and new matter on May 13, 2013. The trial court
permitted Zurich to intervene by order dated August 8, 2013.
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2
The original petition dated February 20, 2013, apparently was incomplete,
and Zurich filed it again on March 18, 2013. See Docket entries sixteen and
seventeen, respectively. See also Zurich’s Brief at 6 n.11. We note that
Zurich’s brief confusingly includes duplicate pagination and footnote
numbering by beginning such numbering over again from “1” in the
“Argument” section of its brief. Thus, for clarity, we will designate any
references to page numbers in the duplicate section as “Argument-__.”
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On October 1, 2013, Zurich filed a petition seeking to compel Denice
to satisfy Zurich’s workers’ compensation subrogation lien in the amount of
$6,569.25 against her third party settlement recovery from Korman. Zurich
also sought fees and costs relating to its efforts to enforce the lien in the
amount of $1,618.82. On November 26, 2013, the trial court issued a rule
to show cause, returnable on December 23, 2013, why Zurich was not
entitled to the relief requested. When Appellants failed to file a response,3
Zurich filed a motion to make the rule absolute on January 7, 2014. On
February 28, 2014, the trial court granted the motion to make the rule
absolute and ordered Appellant to make prompt payment of $8,188.07 to
Zurich. Appellants filed a notice of appeal on March 21, 2014. Both
Appellants and the trial court complied with Pa.R.A.P. 1925.
Appellants present the following question for our review:
Whether the [c]ourt erred as a matter of law in permitting
[Zurich] to intervene under Pa.R.C.P. 2327 without a hearing in
a settled case no longer pending in which distribution had been
made and the [c]ourt lacked jurisdiction to enter judgment
against Appellants (the Wickers) who were never served with
any pleadings requiring them to defend.
Appellants’ Brief at 5.
As noted by our Supreme Court, “The right to subrogation and
reimbursement has been described as absolute and automatic.” Frazier v.
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3
While Appellants asserted at oral argument that they did respond, the
record does not substantiate their claim; the trial court, as well, noted that
Appellants failed to respond. Trial Court Opinion, 4/25/14, at 3.
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W.C.A.B. (Bayada Nurses, Inc.), 52 A.3d 241, 247 (Pa. 2012) (citing
Thompson v. WCAB (USF & G Co.), 781 A.2d 1146, 1151 (Pa. 2001)).
Moreover:
Subrogation is an “equitable doctrine intended to place the
ultimate burden of a debt upon the party primarily responsible
for the loss.” Jones v. Nationwide Prop. and Cas. Ins. Co.,
613 Pa. 219, 32 A.3d 1261, 1270 (Pa. 2011). It allows the
subrogee (the insurer) to step into the shoes of the subrogor
(the insured) to recover from the party that is primarily liable
(the third party tortfeasor) any amounts previously paid by the
subrogee to the subrogor.
AAA Mid-Atlantic Ins. Co. v. Ryan, 84 A.3d 626, 632 n.6 (Pa. 2014).
Whether to allow intervention is a matter vested in the discretion of
the trial court, and the court’s decision will not be disturbed on appeal
absent a manifest abuse of its discretion. Johnson v. Tele-Media Co. of
McKean County, 90 A.3d 736, 739–740 (Pa. Super. 2014). “A trial court
will not be found to have abused its discretion unless the record discloses
that its decision was manifestly unreasonable or was the result of partiality,
prejudice, bias, or ill-will.” Id. (citing Stenger v. Lehigh Valley Hosp.
Center, 554 A.2d 954, 956 (Pa. Super. 1989)).
Appellants contend that Zurich failed to comply with Pa.R.C.P. 2327,
2328, and 2329. Those rules provide, in pertinent part, as follows:
Rule 2327. Who May Intervene
At any time during the pendency of an action, a person not
a party thereto shall be permitted to intervene therein, subject
to these rules if
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1) the entry of a judgment in such action or the satisfaction
of such judgment will impose any liability upon such
person to indemnify in whole or in part the party against
whom judgment may be entered; or
2) such person is so situated as to be adversely affected by a
distribution or other disposition of property in the custody
of the court or of an officer thereof; or
3) such person could have joined as an original party in the
action or could have been joined therein; or
4) the determination of such action may affect any legally
enforceable interest of such person whether or not such
person may be bound by a judgment in the action.
Rule 2328. Petition to Intervene
a) Application for leave to intervene shall be made by a
petition in the form of and verified in the manner of a
plaintiff’s initial pleading in a civil action, setting forth the
ground on which intervention is sought and a statement of
the relief or the defense which the petitioner desires to
demand or assert. The petitioner shall attach to the
petition a copy of any pleading which the petitioner will file
in the action if permitted to intervene or shall state in the
petition that the petitioner adopts by reference in whole or
in part certain named pleadings or parts of pleadings
already filed in the action.
b) A copy of the petition shall be served upon each party to
the action.
Rule 2329. Action of Court on Petition
Upon the filing of the petition and after hearing, of which
due notice shall be given to all parties, the court, if the
allegations of the petition have been established and are found
to be sufficient, shall enter an order allowing intervention; but
an application for intervention may be refused, if
1) the claim or defense of the petitioner is not in
subordination to and in recognition of the propriety of the
action; or
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2) the interest of the petitioner is already adequately
represented; or
3) the petitioner has unduly delayed in making application for
intervention or the intervention will unduly delay,
embarrass or prejudice the trial or the adjudication of the
rights of the parties.
Pa.R.C.P. 2327–2329.
Appellants argue that the instant matter was not a pending action as
required by Pa.R.C.P. 2327. Appellants’ Brief at 16. Appellants submit that
the trial court “improperly equated the pendency of the case with something
totally different, its voluntary discontinuance by a plaintiff prior to trial which
does not end the litigation unless done ‘with prejudice.’” Appellants’ Brief at
17 (citing Robinson Twp. School District v. Houghton, 128 A.2d 58 (Pa.
1956)). Appellants make much of the fact that the instant case had ended
by agreement of both parties; thus, the rule relied upon by the trial court
was inapplicable because “there was no pending case to discontinue by only
one party, the plaintiff, with an eye toward litigating the case in the future.”
Appellants’ Brief at 17.
Appellants assert they were never served with the petition to
intervene, and it did not contain a pleading endorsed with a notice to plead
under Pa.R.C.P. 2328, containing a request of the relief sought and the
reasons the relief was required. Thus, they maintain they were not afforded
the opportunity to plead or retain counsel to defend Zurich’s allegations.
They cite no support for these bald allegations.
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Appellants also assail the fact that the trial court granted the petition
to intervene without holding a hearing “as required by Pa.R.C.P. 2329.”
Appellants’ Brief at 17. They claim that if a hearing would have been held,
the petition would have been denied because Zurich failed to allege any facts
to support the conclusion: 1) that it did not unduly delay its filing of the
petition, or 2) that Appellants were not prejudiced by the delay. Id. at 15.
They cite no support for these allegations.
In response, Zurich explained the background of its filing of the
intervention petition, as follows. Appellants’ counsel allegedly mailed a
letter to Zurich, offering to reimburse Zurich $4,896.40 toward Zurich’s lien
amount of $6,569.25,4 which Zurich rejected. Reply to [Appellants’]
Response with New Matter to [Zurich’s] Petition to Intervene, 5/23/13, at
Exh. A.
Zurich suggests that it never acknowledged that the case was settled
and the funds were distributed, as alleged by Appellants. Rather, Zurich
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4
The mandatory subrogation lien amount is a mathematical calculation on a
form known as a Third Party Settlement Agreement. The pertinent statutory
requirement is as follows:
§ 121.18. Subrogation
(a) If an employee obtains a third-party recovery under section
319 of the act (77 P. S. § 671), a Third Party Settlement
Agreement, Form LIBC-380, shall be executed by the parties.
34 Pa. Code § 121.18; 7 West’s Pa. Prac., Workers’ Compensation § 12:38
(3d ed.); Zurich’s Brief at 2 n.3.
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avers that it maintained only that the parties “reached a settlement,”
claiming that the very purpose of Zurich’s petition to intervene was “to
prevent a distribution of disputed settlement funds and to take action
before the case was discontinued.” Zurich’s Brief at 5 n.9 (emphasis in
original).
Zurich echoes the trial court and posits that Appellants’ case against
Korman was open and pending when Zurich intervened because Appellants
had not filed a praecipe to discontinue it under Pa.R.C.P. 229(a) nor had
Appellants executed a Third Party Settlement Agreement (“TPSA”) required
under 34 Pa. Code § 121.18(a). Zurich also underscores that the
Department of Labor and Industry Regulations direct that an employee who
obtains a third party recovery “shall” execute a TPSA with the employer and
the employer’s compensation insurer and file it with the Bureau of Workers’
Compensation. Spillman v. W.C.A.B. (DPT Business School), 2011 WL
10828080, ___ A.3d ___ (Pa. Cmwlth. 2011) (unpublished memorandum).
Zurich suggests that Appellants did not file a TPSA because the insurance
company paying the benefits, in this case, Zurich, must “review, approve
and sign off on the agreement of the terms of the TPSA. In this case, there
was never any communication of a settlement by [Denice] to Zurich until
after the settlement was concluded. At that time, a compromised lien
reimbursement offer was made to Zurich which was unacceptable.” Zurich’s
Brief at Argument-7 n.1. Zurich avers this fact is additional proof that
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Appellants’ action was not terminated when Zurich petitioned the court to
intervene.
Zurich contends that Pa.R.C.P. 2329 does not require a petitioner to
request a hearing. It maintains that if our Supreme Court wanted to require
a petitioner to request a hearing, it would have written it explicitly into Rule
2329, and it did not do so. Zurich also suggests there was no prejudice to
Appellants, asserting that the reason to require a hearing is to allow the
petitioner the opportunity to prove that it satisfied one of the Pa.R.C.P. 2327
elements. Zurich’s Brief at Argument-11 (citing Santangelo Hauling, Inc.
v. Montgomery County, 479 A.2d 88, 89 (1984) (“The reason for requiring
a hearing is clear: to give the petitioner the opportunity to establish,
factually, that he comes within one of the four categories of persons who are
entitled to intervene under Pa.R.C.P. 2327”) (internal citation and quotation
omitted)). Here, Zurich points out that Appellants’ complaint on appeal is
that the trial court erred in granting Zurich’s petition to intervene. Zurich
submits that in cases involving a successful, but opposed, petition to
intervene, the party opposed to the court’s grant of the petition must have
been “prejudiced” by the court’s ruling. Zurich maintained to the trial court
and advances on appeal that Appellants never complained they were
prejudiced by the trial court’s order permitting Zurich to intervene.
Relatedly, Zurich proffers that it had to make only a prima facie showing
that it fell within one of the four categories of Pa.R.C.P. 2327, and it did so.
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Zurich’s Brief at Argument-10. See Johnson, 90 A.3d at 742 (“Once a
petitioner seeking intervention presents a prima facie case for intervention,
there is no requirement that he prove his case before intervention will be
permitted, since otherwise he would be forced to try his case twice.”).
Finally, Zurich echoes the trial court’s decision of waiver, maintaining that
Appellants never made a claim regarding lack of service of the petition to
intervene to the trial court.
We address Appellants’ claim that the case was not pending when
Zurich filed its petition to intervene in violation of Pa.R.C.P. 2327. While this
precise issue, as worded in Appellants’ Brief, was not identified verbatim in
Appellant’s Pa.R.A.P. 1925(b) statement, we construe the claim as an “error
identified in the Statement . . . deemed to include every subsidiary issue
contained therein which was raised in the trial court.” Pa.R.A.P.
1925(b)(4)(v); Trial Court Opinion, 4/25/14, at 3.
We reject Appellants’ averment that the petition to intervene was not
filed during the pendency of the action. The trial court determined that the
case remained pending because Appellants had never filed a praecipe to
discontinue the case and, in fact, had inferred as much in their response to
the intervention petition, where they averred that an “Order to Settle,
Discontinue and End was presented to Defendant Korman to be filed with
the Court.” Response to the Petition to Intervene and New Matter, 5/13/13,
at ¶¶ 17, 18 (emphasis added). We agree with the trial court that the fact
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that Appellants may have come to some private agreement does not alter
this conclusion. The trial court noted that pursuant to Pa.R.C.P. 229(a), a
discontinuance is the “exclusive method of voluntary termination of an
action, in whole or in part, by the plaintiff before commencement of the
trial.” Trial Court Opinion, 4/25/14, at 4; Pa.R.C.P. 229(a) (“A
discontinuance shall be the exclusive method of voluntary termination of an
action, in whole or in part, by the plaintiff before commencement of the
trial.”)
Moreover, in reviewing the docket activity for this case, we note the
following. Appellants filed their complaint against Korman on December 3,
2008. Multiple entries followed, through January 25, 2010, but there is no
docket activity for the ensuing two years. On February 9, 2012, the Bucks
County Prothonotary filed a termination notice advising Appellants that the
“court intends to terminate this case without further notice because the
docket shows no activity on the case for at least two years.” Notice of
Proposed Termination of Court Case, 2/9/12. Six days later, on February
15, 2012, Appellants filed a certificate of active status, indicating that “[t]he
parties are attempting mediation before certifying the case for trial.”
Statement of Intention to Proceed, 2/15/12; Docket Entry 16. The next
docket entry after Appellants’ certificate of active status is Zurich’s Petition
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to Intervene. Docket Entry 17, 2/20/13.5 We discern nothing in the record
that compels a conclusion that the trial court abused its discretion in
determining that the action remained pending for purposes of Pa.R.C.P.
2327.6
Appellant’s next assertion is that the trial court erred in allowing Zurich
to intervene without holding a hearing. The trial court did not address this
claim. This issue was not included in Appellants’ statement of errors
complained of on appeal, nor is it suggested thereby; therefore, it is waived.
Pa.R.A.P. 1925(b)(4)(vii). Brandon v. Ryder Truck Rental, Inc., 34 A.3d
104, 111 (Pa. Super. 2011); Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa.
Super. 2009) (citing Southcentral Employment Corp. v. Birmingham
Fire Ins. Co. of Pa., 926 A.2d 977, 983 n.5 (Pa. Super. 2007) (holding that
issue not raised in statement of matters complained of on appeal is waived
for purposes of appeal)).7
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5
As noted supra note 2, the original petition dated February 20, 2013,
apparently was incomplete, and Zurich filed it again on March 18, 2013.
6
While we agree with Zurich that Appellants’ failure to file a TPSA with the
employer and the employer’s workers’ compensation insurer is additional
evidence of the pendency of the litigation, we cannot verify this contention in
the instant record.
7
Even if not waived, we would reject the claim. The single case cited by
Appellants relates to the denial, not grant, of a petition to intervene. As
noted by Zurich, the standard in cases involving a claim that intervention
should not have been permitted requires a showing that the party opposing
intervention was prejudiced. See Moyer v. Gudknecht, 67 A.3d 71, 79
(Footnote Continued Next Page)
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Finally, Appellants contend they “were never served with the Petition
to Intervene[,] and the Petition did not contain a pleading endorsed with a
notice [to] plead under Pa.R.C.P. 2328.” Appellants’ Brief at 15. As noted
by the trial court, this claim was never presented to the trial court and is
waived. Issues not raised in the trial court cannot be raised for the first time
on appeal. Pa.R.A.P. 302; In re F.C. III, 2 A.3d 1201, 1211–1212 (Pa.
2010); Bednarek v. Velazquez, 830 A.2d 1267 (Pa. Super. 2003).
Despite waiver, the trial court additionally noted that the record does
not support Appellants’ contention. In support, the trial court noted as
follows:
The record established the following:
1. Petition to Intervene—Zurich’s counsel filed a
Certificate of Service dated February 19, 2013,
certifying that he served the Petition to Intervene
“by first class US mail and electronic mail” upon
counsel of record, including Plaintiffs’ attorney,
Raymond J. Quaglia, Esquire, Raymond J. Quaglia,
P.C., 1313 Race Street, Philadelphia, PA 19107.
Plaintiffs filed a response on May 13, 2013 opposing
Zurich’s Petition to intervene.
2. Petition to Compel Satisfaction of Workers’
Compensation Lien Directed to Plaintiff Denice
_______________________
(Footnote Continued)
(Pa. Cmwlth. 2013) (stating allowance of party to intervene is ground for
reversal “only if the appellant was prejudiced by the intervention.”). See
generally Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa. Super.
2002) (“Although our Court is not bound by decisions of the Commonwealth
Court, we may elect to follow those decisions if we find the rationale of those
decisions persuasive.”). Appellants herein did not assert to the trial court
that they were prejudiced by Zurich’s intervention.
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Wicker—Zurich’s counsel filed a Certificate of Service
dated November 5, 2013 certifying that he served
the Petition to Compel Satisfaction “by first class US
mail and electronic mail” upon counsel of record,
including Plaintiffs’ attorney, Raymond J. Quaglia,
Esquire, Raymond J. Quaglia, P.C., 1313 Race
Street, Philadelphia, PA 19107.
3. Rule to Show Cause-Zurich’s counsel filed a
Certificate of Service dated December 3, 2013
certifying that he served Rule to Show Cause dated
November 26, 2013 and returnable December 23,
2013 and the Petition to Compel certified mail and
electronic mail to counsel of record including
Plaintiffs’ attorney, Raymond J. Quaglia, Esquire,
Raymond J. Quaglia, P.C., 1313 Race Street,
Philadelphia, PA 19107. Zurich’s counsel attached
copies of the certified mail return receipt establishing
that the certified mail was delivered to counsel’s
office on December 5, 2013.
4. Motion to Make Rule Absolute-Zurich’s counsel
filed a Certificate of Service dated January 3, 2013
certifying that he served the Motion by first class
mail upon counsel of record including Plaintiffs’
attorney, Raymond J. Quaglia, Esquire, Raymond J.
Quaglia, P.C., 1313 Race Street, Philadelphia, PA
19107. Zurich attached to its motion as Exhibit B a
copy of its cover letter to the Plaintiffs’ counsel dated
December 3, 2013, with the United States Postal
Service tracking number attached; a copy of the
signed, returned certified mail receipt, with the same
tracking number as the cover letter; and a copy of
an e-mail sent from Zurich’s counsel to the Plaintiffs’
counsel dated December 3, 2013, 1:35 p.m., with
the rule to show cause order and related documents
attached in portable document format (“PDF”).
Clearly, all of the above documents were served in
conformity with the Rules of Civil Procedure, Rule 205.4(g)(1)
and Rule 440. A properly posted pleading raises a presumption
that it has been received in due course of mail by the addressee.
Wheeler v. Red Rose Transit Auth., 890 A.2d 1228, 1231
(Pa. Cmwith. 2006); Franklin Interiors, Inc. v. Browns Lane,
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Inc., 323 A.2d 226 (Pa. Super. 1974). Counsel’s representation
to the contrary is not sufficient to rebut the presumption that the
Petitions and Rules were received. Wheeler v. Red Rose
Transit Authority, supra; DeVeaux by DeVeaux v. Palmer,
558 A.2d 166 (Pa. Cmwlth. 1989). Plaintiffs’ claims regarding
lack of service are therefore without merit.
Trial Court Opinion, 4/25/14, at 4–5. Therefore, even if this issue had been
preserved, we would conclude that it lacked merit based upon the trial
court’s discussion above.
Thus, Appellants’ argument that the trial court’s order granting
Zurich’s Petition to Intervene was an abuse of discretion is without merit.
The February 28, 2014 order is affirmed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
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