Loftus, M. v. Decker, K., Appeal of: Eastern ( 2023 )

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2023 PA Super 14MICHELE LOFTUS AND RICHARD : IN THE SUPERIOR COURT OF
LOFTUS, HER HUSBAND : PENNSYLVANIA
:
:
v. :
:
:
KATRINA DECKER :
: No. 611 WDA 2021
:
APPEAL OF: EASTERN ALLIANCE :
INSURANCE GROUP :
Appeal from the Order Entered April 23, 2021
In the Court of Common Pleas of Indiana County Civil Division at No(s):
11725 CD 2020
BEFORE: PANELLA, P.J., OLSON, J., DUBOW, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., McLAUGHLIN, J., McCAFFERY, J., and SULLIVAN, J.
OPINION BY NICHOLS, J.: FILED: FEBRUARY 1, 2023
Appellant Eastern Alliance Insurance Group appeals from the order
denying its petition to intervene in an action initiated by Michelle and Richard
Loftus (collectively, the Loftuses) in a praecipe for writ of summons against
Katrina Decker (Decker). After review, we quash.
Briefly, the record reflects that on September 25, 2020, the Loftuses
filed a praecipe for writ of summons naming Decker as the defendant. On
February 25, 2021, Appellant filed a petition to intervene.1 In its petition,
Appellant asserted that Michelle Loftus (Loftus) was employed as a bus driver
for Appellant’s insured, Tri County Transportation. See Appellant’s Pet. to
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1 Because no complaint was filed, and due to the sparseness of the record at
this stage of the proceedings, we glean the background of this matter, as best
we can, from the facts alleged in Appellant’s petition to intervene.
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Intervene, ¶¶ 1-7. The petition further alleged that Loftus had sustained
injuries in an auto accident that occurred while she was in the course of her
employment with Tri County Transportation, and that Decker caused the auto
accident. See id. Due to her injuries, Loftus previously sought workers’
compensation benefits from Appellant, which claims that it paid Loftus
$196,093.34 in workers’ compensation benefits. See id. at ¶¶ 8-9. Appellant
states that the $196,093.34 is a statutory lien against any damages Loftus
may recover from Decker in a personal injury/tort action. See id. Appellant
contends that Loftus settled her workers’ compensation claim on May 14,
2020, and that the settlement agreement provided as follows:
Employer/Carrier retains its absolute right to statutory
subrogation pursuant to Section 319 of the Workers’
Compensation Act, [77 P.S. § 671,] as amended. Claimant
understands that in the event of a third-party recovery,
Employer/Carrier is subrogated for all workers’ compensation
benefits it paid to [Loftus] or on Claimant’s behalf, including the
amount of this settlement, with no lien waiver as agreed upon by
the Claimant. It shall be the responsibility of Claimant to notify
[Appellant] of any third-party recovery either by settlement or
trial and to satisfy [Appellant’s] statutory subrogation claim from
the proceeds of any third-party recovery within thirty (30) days of
receipt of any recovery.
Id. at ¶ 17.
As noted previously, the Loftuses filed a praecipe for writ of summons
against Decker, and Appellant notified the parties of its workers’ compensation
subrogation lien. It is undisputed that the Loftuses have not filed a complaint.
However, although no complaint has been filed, Appellant filed a petition to
intervene. Appellant asserts that intervention is necessary to protect its
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workers’ compensation lien because the Loftuses refuse to accept the $25,000
that Decker’s insurance carrier offered to settle the case. See id. at ¶¶ 15-
24. Appellant asserts that the Loftuses are prepared to abandon litigation and
not seek recovery against Decker unless Appellant agrees to compromise its
statutory lien rights. See id. at ¶¶ 21-22. Specifically, Appellant contends
that it is necessary for it to intervene to “prosecute this matter and protect its
statutory lien rights, which are not adequately represented by [the Loftuses]
or [Decker].” Id. at ¶ 23.
Appellant attached a civil complaint to its petition to intervene. This
complaint lists Loftus as the sole plaintiff, and it alleges that Decker was legally
responsible for the accident and the damages that Loftus sustained.
Appellant’s Proposed Comp., 2/22/21, at 3-5. Appellant did not list itself as a
named party. Rather, Appellant listed itself as a third-party intervener and
subrogation lien holder. Id. at 2, 5.
On April 23, 2021, the trial court denied Appellant’s petition to intervene
and concluded as follows:
1. [The Loftuses] commenced this suit by filing “Plaintiff’s
Praecipe for Writ of Summons” on September 25, 2020. A
complaint has not been filed.
2. There are no verified allegations of the facts supporting the
cause of action, and, in fact, no cause of action [has] been
alleged.
3. Until a cause of action, and the facts supporting such cause of
action, are alleged by [the Loftuses], the [trial court] is unable
to determine the merits of [Appellant’s petition to intervene].
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Wherefore, it is ordered, adjudged, and decreed that [Appellant’s
petition to intervene] is denied. Provided, however, this denial is
without prejudice to [Appellant] to file the same or similar
[petition to intervene after] a complaint is filed.
Order, 4/23/21 (some formatting altered).
Accordingly, the trial court concluded that it could not grant Appellant’s
petition to intervene pursuant to Pa.R.C.P. 2327, because, in the absence of
a complaint, no judgment could be entered. See Trial Ct. Op., 7/6/2021, at
1-3. Therefore, it was impossible for Appellant to demonstrate the existence
of a legally enforceable interest that intervention would protect. See id.
Additionally, the trial court reasoned that Appellant could not establish the
right to appeal the order as a collateral order under Pa.R.A.P. 313(b), because
there is no right that would be “irreparably lost.” Id. at 3. The trial court
concluded that without a complaint or the possibility of an adverse judgment,
Appellant was initiating the action rather than protecting a right that could be
lost if the ability to appeal was denied. Id. at 2-3.
Following the April 23, 2021 order denying its petition to intervene,
Appellant filed the instant appeal. Both the trial court and Appellant complied
with Pa.R.A.P. 1925.
On March 10, 2022, a three-judge panel of this Court quashed the
appeal, and on March 23, 2022, Appellant timely filed an application for
reargument en banc. On May 17, 2022, this Court granted en banc review
and withdrew the prior panel’s decision. Reargument was heard by this Court
en banc on September 14, 2022, and this matter is now ripe for disposition.
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Appellant presents the following issues for review:
1. Pursuant to Pa.R.A.P. 313, is the instant matter appealable by
right as collateral order?
2. Did the [trial court] abuse its discretion and commit an error of
law when it denied [Appellant’s] petition to intervene without a
hearing, on the basis that the court had insufficient facts by
which to consider the petition to intervene, when facts
sufficient were alleged in the verified petition to intervene and
not contested in Appellees’ response in opposition thereto?
Appellant’s Brief at 4 (some formatting altered).
Appellant contends that the order denying its petition to intervene is
appealable as a collateral order under Pa.R.A.P. 313. In support, Appellant
claims that (1) the order can be reviewed without analyzing the merits of
Loftuses’ tort claims against Decker; (2) the order involves rights that are
deeply rooted in public policy and too important to deny an immediate review;
and (3) Appellants’ claim would be irreparably lost if review was postponed.
See Appellant’s Brief at 12-16.
It is well settled that questions concerning the appealability of an order
implicate our jurisdiction. Jacksonian v. Temple Univ. Health Sys.
Found., 862 A.2d 1275, 1279 (Pa. Super. 2004) (citation omitted).
Generally, an appeal to our Court lies only from a final order. See Barak v.
Karolizki, 196 A.3d 208, 215 (Pa. Super. 2018) (citing 42 Pa.C.S. § 742).
“[A] final order is any order that disposes of all claims and of all parties.”
Pa.R.A.P. 341(b)(1). Typically, “an appeal will not lie from an order denying
intervention, because such an order is not a final determination of the claim
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made by the would-be intervenor.” First Commonwealth Bank v. Heller,
863 A.2d 1153, 1155 (Pa. Super. 2004) (citation omitted).2
However, an appeal may be permitted if the order in question satisfies
the requirements for an appealable collateral order under Pa.R.A.P. 313.
Pursuant to Pa.R.A.P. 313(b), a collateral order must satisfy a three-pronged
test and is defined as an order that: “1) is separable from and collateral to the
main cause of action; 2) involves a right too important to be denied review;
and 3) presents a question that, if review is postponed until final judgment in
the case, the claim will be irreparably lost.” In re Bridgeport Fire
Litigation, 51 A.3d 224, 230 n.8 (Pa. Super. 2012) (citation omitted).
“Absent the satisfaction of all three prongs of the collateral order test, this
Court has no jurisdiction to consider an appeal of an otherwise non-final
order.” Spanier v. Freeh, 95 A.3d 342, 345 (Pa. Super. 2014) (citation
omitted).
This Court has explained that:
For the first prong of the analysis under Pa.R.A.P. 313(b), a court
must determine whether the issue(s) raised in the order are
separable from the central issue of the ongoing litigation. Under
the second prong, in order to be considered too important to be
denied review, the issue presented must involve rights deeply
rooted in public policy going beyond the particular litigation at
hand. An issue is important if the interests that would potentially
go unprotected without immediate appellate review of that issue
are significant relative to the efficiency interests sought to be
advanced by the final judgment rule. Furthermore, with regard to
the third prong of the analysis, our Supreme Court explained that
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2It is undisputed that the order denying Appellant’s petition to intervene is
not a final order.
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whether a right is adequately vindicable or effectively reviewable,
simply cannot be answered without a judgment about the value
interests that would be lost through rigorous application of a final
judgment requirement.
Bogdan v. American Legion Post 153 Home Assoc., 257 A.3d 751, 755-
56 (Pa. Super. 2021) (citation omitted and formatting altered).
Appellant contends that the first prong of the test for a collateral order
is satisfied because the order denying intervention is separable from and
collateral to the central issue involving Decker’s liability for damages the
Loftuses sustained. Appellant’s Brief at 12-13. Appellant asserts that the
second prong is also met because, as a workers’ compensation insurance
carrier, Appellant’s right of subrogation is protected by statute and its right to
recover its statutory lien is too important to be denied review. Id. at 13-15.
Finally, Appellant argues that the claims set forth in its petition to intervene
establish that intervention is the only way for Appellant to protect its
subrogation rights because the Loftuses have threatened to abandon their
cause of action, which would preclude Appellant’s subrogation claim. Id. at
15.
The Loftuses respond that the order denying Appellant’s petition to
intervene does not satisfy the three prongs necessary for an appealable
collateral order. Further, the Loftuses claim that the facts alleged in
Appellant’s petition to intervene are insufficient to determine the main cause
of action in the Loftuses’ writ of summons. Loftuses’ Brief at 9. Next, the
Loftuses assert that currently, Appellant has not lost any rights and it “is in
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the same position as it was prior to the writ of summons being filed.” Id. at
10. Moreover, the Loftuses argue that the plaintiff controls whether a
complaint is filed against a third-party defendant and not the workers’
compensation insurance carrier. Id. The Loftuses also note that Appellant
could have protected its ability to pursue subrogation because it was free to
bargain for an assignment of rights from Michelle Loftus as part of a workers’
compensation settlement. Id. However, the Loftuses assert that Appellant
failed to secure such an assignment of rights, and Appellant should not be
able to complain that the issue is now “too important to be denied review.”
Id. The Loftuses conclude by contending that the order is not appealable and
assert that at this stage of the proceedings, where only a writ of summons
has been filed, the trial court cannot enter final judgment. Id. at 11.3
Separable Claim
We begin our review by addressing whether the order denying
Appellant’s petition to intervene satisfies the first prong of the collateral order
test requiring the order to be separable from the main cause of action. See
Bridgeport Fire Litigation, 51 A.3d at 231. Upon review, we conclude that
the order meets this first prong.
Indeed, the order denying Appellant’s petition to intervene to protect its
subrogation rights is separable from and collateral to tort claims the Loftuses
could file against Decker. See, e.g., Bogdan, 257 A.3d at 756 (concluding
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3 The Loftuses acknowledge that the trial court could require them to file a
complaint or withdraw the writ of summons. Loftuses’ Brief at 11.
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that where liquor liability insurance company sought to intervene in a
negligence action that the decedent’s estate filed against an American Legion
Post, liquor liability insurance company’s right to intervene was collateral to
the underlying action). Instantly, Appellant’s procedural ability to intervene
is distinct from and collateral to any claims for personal injuries or tort claims
the Loftuses could pursue against Decker. Accordingly, the order satisfies the
first prong, and we proceed to the second part of the test.
Important Right
We next address whether the right involved is too important to be
denied review. See Bridgeport Fire Litigation, 51 A.3d at 231. After
careful review, we conclude that the order denying Appellant’s petition to
intervene does not meet this second prong because Appellant has no legal
interest or right to protect at this stage of the proceedings.
Appellant argues that the trial court erred in holding that it could not
grant Appellant’s petition to intervene until a complaint was filed. Appellant’s
Brief at 17. Appellant contends that Pa.R.C.P. 1007(1) provides that an action
can be commenced by praecipe for writ of summons, and Pa.R.C.P. 2327
provides that “[a]t any time during the pendency of an action, a person not a
party thereto shall be permitted to intervene therein,” which renders
intervention allowable. Id. at 22-26.
First, we note that a praecipe for writ of summons contains no statement
of facts, claims, rights, or prayer for relief, and it states merely: “You are
hereby notified that [name(s) of plaintiff(s)] has (have) commenced an action
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against you.” Pa.R.C.P. 1351. The purpose of the praecipe for writ of
summons is “to provide certainty as to the commencement of an action and
to remove a subsequent failure to effect service from consideration in
determining whether the statute of limitations has been tolled.” Sayers v.
Heritage Valley Medical Group, Inc., 247 A.3d 1155, 1161 (Pa. Super.
2021) (quoting Lamp v. Heyman, 366 A.2d 882, 886 (Pa. 1976)).
The Loftuses’ writ of summons serves only a limited purpose, and it does
not contain any facts. Therefore, we agree with the trial court that, without a
complaint, the record does not contain sufficient information upon which to
determine whether Appellant’s intervention is proper under the Rules of Civil
Procedure. See Pa.R.C.P. 2327, 2328, and 2329. Because the Loftuses have
not filed a complaint, proceeding based on Appellant’s petition to intervene
would necessarily substitute Appellant in place of the Loftuses as plaintiff in a
tort action against Decker. Essentially, through its petition to intervene,
Appellant would become the first party pleading the Loftuses’ cause of action,
claiming the facts supporting the Loftuses’ cause of action, and alleging the
Loftuses’ prayer for relief. Moreover, it would allow Appellant to both craft the
action and assert the reasons it should be permitted to intervene in that
action. As such, an objective analysis of the intervention factors from
Pa.R.C.P. 2327, 2328, and 2329 would be impossible, and the first party
pleading any facts in the case would not be the plaintiff or defendant, but
rather it would be a party with no legal interest to protect at this time.
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Therefore, because Appellant does not yet have a legal interest or
important right to protect, we conclude that the order denying Appellant’s
petition to intervene does not meet the second prong of the test for an
appealable collateral order. See Bridgeport Fire Litigation, 51 A.3d at 231.
With respect to Appellant’s claim concerning its subrogation rights, we
note that Section 319 of the Workers’ Compensation Act, 77 P.S. § 671, does
not bestow upon any party, directly or indirectly, the right to take any action
against a third-party tortfeasor. See Hartford Ins. Group on behalf of
Chunli Chen v. Kamara, 199 A.3d 841 (Pa. 2018) (Kamara II); Liberty
Mutual Ins. Co. v. Domtar Paper Co., 113 A.3d 1230 (Pa. 2015) (Domtar
Paper). Instead, our Supreme Court has held that Section 319 provides that
only the employee can pursue damages from the tortfeasor, and the insurer
has no right to seek a recovery or compel an employee to seek recovery to
satisfy a statutory lien under the Workers’ Compensation Act. See Kamara
II, 199 A.3d at 853; Domtar Paper, 113 A.3d at 1240.
In Domtar Paper, the insurer directly filed a complaint against a third-
party tortfeasor alleging negligence resulting in injury to an employee, who
had declined to pursue a claim against the tortfeasor. In response, the third-
party tortfeasor asserted that the insurer had no right to file an independent
claim for damages on behalf of the injured employee who did not file an action.
On appeal, the Domtar Paper Court held that under Section 319, an
insurance carrier has “no independent cause of action for
indemnification/contribution from the negligent party who caused the
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insurance carrier to pay the injured employee benefits.” Domtar Paper, 113
A.3d at 1239. The action against the third-party tortfeasor must be brought
by the injured employee. The Domtar Paper Court stated:
[W]e reaffirm that the right of action against a third-party
tortfeasor under Section 319 of the [Workers’ Compensation Act]
remains in the injured employee, and that the employer/insurer’s
right of subrogation under Section 319 must be achieved through
a single action brought in the name of the injured employee or
joined by the injured employee.
Id. at 1240.
In Kamara II, our Supreme Court addressed the issue of whether an
insurer could bring an action against a third-party tortfeasor if it filed the
action on behalf of the employee. Kamara II, 199 A.3d at 842. In that case,
an employee of a rental car company was hit by a car driven by a third-party
driver while standing in her employer’s parking lot. The employee did not
want to participate in a third-party case against the driver, and the insurer
filed its complaint against the third-party tortfeasor as “The [insurer] on behalf
of [the claimant]” and captioned the plaintiff in the complaint as “The [insurer]
on behalf of [employee].” Id. at 843. The trial court sustained the third-
party tortfeasor’s preliminary objections and dismissed the insurer’s complaint
with prejudice. On appeal, this Court vacated the trial court’s order and
remanded for further proceedings. See The Hartford Ins. Group on Behalf
of Chen v. Kamara, 155 A.3d 1108, 1113-14, 1115 (Pa. Super. 2017)
(Kamara I) (concluding that the insurer’s action, which was initiated “on
behalf” of the employee, was not an improper direct claim for subrogation,
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and the insurer could properly verify the complaint upon information and
belief).
Our Supreme Court subsequently granted review and reversed this
Court’s decision in Kamara I. Specifically, the Supreme Court held that “the
right of action against the tortfeasor remains in the injured employee . . .
unless the injured employee assigns her cause of action or voluntarily joins
the litigation as a party plaintiff, the insurer may not enforce its statutory right
to subrogation by filing an action directly against the tortfeasor.” Kamara II,
199 A.3d at 842.
Further, the Kamara II Court rejected the insurer’s claim that the
decision in Domtar Paper left open the possibility that an insurer could
pursue a cause of action against a third-party tortfeasor if the insurer initiated
litigation “in the name of” or “on behalf of” a claimant. Id. at 845, 849 (stating
that an employer or workers’ compensation carrier cannot seize the injured
employee’s cause of action against the tortfeasor “by merely captioning the
complaint ‘on behalf of’ the employee and/or by including in the complaint
independent claims of the employee in addition to the claim for subrogation
of workers’ compensation benefits”). Further, the Court held that the right of
recovery flows exclusively through the employee’s decision alone, that a claim
must be brought with the employee’s “participation,” and that there is no
“authority, statutory or otherwise, permitting an [insurer] to pursue
[employee’s] cause of action against [a t]ortfeasor without [the employee’s]
voluntary participation as a party plaintiff or the contractual assignment of her
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claim.” Id. Finally, the Court stated: “we reiterate our holding in Domtar
Paper and clarify that absent the injured employee’s assignment or voluntary
participation as a party plaintiff, the insurer may not enforce its Section 319
right to subrogation by filing an action directly against the tortfeasor.” Id. at
853.
Further, our Supreme Court in Domtar Paper and Kamara II, clarified
that the Workers’ Compensation Act only permits the employee to maintain
an action against a third-party tortfeasor; the employee is under no obligation
to protect an insurer’s lien rights; and the insurer cannot bring a civil action
in its own name or “in the name of the employee” to satisfy its statutory lien
unless the employee “voluntarily” participates in the action or assigns its
rights. See Kamara II, 199 A.3d at 853; Domtar Paper, 113 A.3d at 1240.
Here, Appellant acknowledges that it cannot independently seek to
recover its statutory lien against the third-party tortfeasor to satisfy its
workers’ compensation lien without an assignment of rights from the injured
worker. Appellant’s Brief at 26. Further, Appellant concedes that it does not
have such an assignment. Id. However, Appellant asserts that it can
intervene and file a complaint because it is not independently seeking to
recover its lien; rather, it only seeks to intervene in the action commenced by
the Loftuses’ praecipe for writ of summons. Id.
After careful review, we disagree. As noted previously, although the
Loftuses filed a praecipe for writ of summons and “commenced” the underlying
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action against Decker,4 the filing is devoid of any relevant information, and
the action is speculative. Because there is no complaint, there are no specific
claims, facts, or prayers for relief. Additionally, it is undisputed that the right
to sue Decker remains with the Loftuses and that, at this stage, the record
does not yet enumerate the rights the Loftuses seek to exercise or the relief
sought.
To the extent Appellant attempts to define and maintain a tort action on
behalf of the Loftuses in an effort to protect its own rights, it is precluded from
doing so under Domtar Paper and Kamara II. Specifically, we note that
Kamara II expressly prohibits Appellant from filing a complaint in Loftus’s
name and that allowing Appellant to intervene and name Loftus as the plaintiff
in a complaint is no different than allowing Appellant to maintain an
independent action in its own name to recover the workers’ compensation lien,
which Domtar Paper expressly prohibited. Further, Kamara II requires the
employee to “voluntarily” participate in the litigation directed at satisfying a
subrogation lien, and that instantly, the Loftuses are not voluntary participants
in Appellant’s proposed action. Additionally, both Domtar Paper and
Kamara II held that an employee under Section 319 is under no obligation
to protect an insurance carrier’s subrogation lien and, therefore, Appellant’s
claim that intervention is necessary to protect its statutory lien because the
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4 An action may be commenced by filing a praecipe for a writ of summons or
a complaint. Pa.R.C.P. 1007.
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Loftuses may abandon the litigation is unavailing. See Kamara II, 199 A.3d
at 853; Domtar Paper, 113 A.3d at 1240.
For these reasons, Appellant does not have a legally enforceable interest
to file suit on its own behalf or to compel the Loftuses to file a complaint
against Decker to protect Appellant’s subrogation lien. Accordingly, we
conclude that at this juncture, Appellant has no legally enforceable interest
and no right that needs to be protected.5 As such, the order at issue does not
satisfy the second prong of the test to be an appealable collateral order. See
Bridgeport Fire Litigation, 51 A.3d at 231.
Irreparable Harm
For these reasons, we have concluded that Appellant has no right nor
interest to protect at this stage of the proceedings, however the trial court has
not precluded Appellant from filing its petition to intervene if the Loftuses file
their complaint. Therefore, the order denying intervention will not result in
any irreparable harm or loss of a claim, and the third prong of the test for an
appealable collateral order is not satisfied and no relief is due. See id.____________________________________________
5We reiterate that no complaint has been filed in this case, and the trial court
specifically denied Appellant’s petition to intervene without prejudice to
Appellant’s right to file a petition to intervene if a complaint is filed. See Trial
Ct. Op., 7/6/21, at 2-3; see also Gleason v. Alfred I. Dupont Hosp. for
Children, 260 A.3d 256 (Pa. Super. 2021) (finding an order denying workers’
compensation insurer’s petition to intervene was appealable as a collateral
order where the employee had filed a complaint against the tortfeasor).
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Conclusion
For these reasons, we conclude that the order underlying this appeal is
not an appealable collateral order. Accordingly, we quash.6
Appeal quashed.
President Judge Panella, Judges Olson, Judge Dubow, Judge Kunselman,
Judge McLaughlin, Judge McCaffery and Judge Sullivan joins the opinion.
Judge Murray files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2023
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6 In light of our conclusion, we do not reach Appellant’s remaining issue.
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