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HomeMy WebLinkAbout00-8478 civilDONEGAL MUTUAL COMPANY,' IN THE COURT OF COMMON PLEAS OF Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA Vo CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant · ' NO. 2000-8478 CIVIL TERM · · CIVIL ACTION- LAW IN RE' PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY. BEFORE BAYLEY~ GUIDO, JJ. ORDER OF COURT AND NOW, this day of JUNE, 2001, for the reasons set forth in the accompanying opinion, the demurrer of defendant Roadway is SUSTAINED and the complaint, as to defendant Roadway is DISMISSED. Edward E. Guido, J. Jason WeinstoCk, Esquire For the Plaintiffs Kevin C. McNamara, Esquire For Roadway Express, Inc. Daniel Deardorff, Esquire For Charles Leese :sld DONEGAL MUTUAL COMPANY,- IN THE COURT OF COMMON PLEAS OF Plaintiff · CUMBERLAND COUNTY, PENNSYLVANIA Ve CHARLES LEESE and ROADWAY EXPRESS, INC., Defendant · NO. 2000-8478 CIVIL TERM · CIVIL ACTION- LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT ROADWAY BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT Plaintiff instituted this action in an attempt to recover first party benefits paid to defendant Leese as a result of a motor vehicle accident which was eventually determined to be work related. Before us are defendant Roadway's preliminary objections in the nature of a demurrer. The parties have briefed and argued their respective positions. This matter is now ready for disposition. DISCUSSION The standard to be applied to preliminary objections in the nature of a demurrer was succinctly stated by our Supreme Court as follows: A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader's fight to relief. For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as tree all well-pleaded, material, relevant facts, and every inference fairly deducible from those facts. Since the sustaining of a demurrer results in a denial of the pleader's claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. 2000-8478 CIVIL TERM Allegheny County v. Commonwealth, 507 Pa. 360, 372 490 A.2d 402, 408 (1985) (citations omitted). Furthermore, when ruling upon a demurrer, we are limited to a review of the allegations set forth in the complaint. Mellon Bank, N.A.v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Applying the above standard to the case at bar, we are satisfied that the demurrer must be granted. The following facts are established by the complaint. Plaintiff paid defendant Leese first party wage and medical benefits pursuant to his private automobile insurance policy.~ As early as April 16, 1999, plaintiff advised defendant Leese and his attorney that it was requesting subrogation from any worker's compensation benefits paid as a result of the accident.2 On June 30, 1999, plaintiff requested information regarding the status of the worker's compensation claim from defendant Roadway's third party administrator.3 In that same letter, plaintiff acknowledged the existence of the proceedings before the worker's compensation judge, making specific reference to a hearing that had been held on April 27, 1999.4 On July 22, 1999, the defendants settled the worker's compensation claim by executing a Compromise and Release Agreement which was approved by a worker's compensation judge.5 Plaintiff seeks subrogation'pursuant to Section 319 of the Worker's Compensation Act, which provides in relevant part as follows' Where an employee has received payments for the disability or medical expense resulting from an injury in the course of his employment paid by the employer or an insurance company on the basis that the injury and disability were not compensable under this act in the event of an Complaint paragraph 6. Complaint paragraph 7 and Exhibit D thereto. Complaint paragraph 8 and Exhibit E thereto. See Exhibit E to the complaint. See Exhibit F to the complaint. 2000-8478 CIVIL TERM agreement or award for that injury the employer or insurance company who made the payments shall be subrogated out of the agreement or award to the amount so paid, if the right to subrogation is agreed to by the parties or is established at the time of hearing before the referee or the board. 77 P.S. § 671 (emphasis added). In the instant case, there was no agreement between plaintiff and defendant Roadway as to plaintiff's fight to subrogation. Nor was the fight to subrogation established before the referee. Therefore, defendant Roadway's demurrer must be sustained. We are unable to distinguish this case from Baierl Chevrolet v. WCAB, 149 Pa. Commonwealth 367, 613 A.2d 132 (Pa. Commonwealth 1992). In Baierl the Commonwealth Court squarely addressed the fights and obligations of the parties under Section 319. It held that "subrogation, being an equitable concept, is not self-executing" and, absent an express agreement, "must be asserted during the pendency of a workmen's compensation proceeding." 613 A.2d at 134. Plaintiff relies on Kaiser v. Old Republic Insurance Co., 741 A.2d 748 (Pa. Super. 1999) in which the plaintiff was allowed to seek subrogation outside the worker's compensation proceeding. However, the Kaiser case reinforces our holding that defendant Roadway's demurrer must be sustained. The Kaiser Court discussed the Baierl decision as follows' The court applied section 319 and concluded subrogation was improper because Blue Cross/Blue Shield's fight to subrogation was not by contract agreement and was not raised or established at the time of the initial heating on the worker's claim for workers' compensation benefits. However, one salient fact distinguishes Baierl from the instant matter and renders its holding inapposite to the present case. In Baierl, Blue/Cross Blue Shield was aware of the filing of the workers' compensation claim by the injured worker before the time of the workers' compensation hearing. Baierl at 135. Thus, Blue Cross/Blue Shield had the opportunity to comply with the provisions of section 319 by either procuring a 2000-8478 CIVIL TERM subrogation agreement or by asserting its claim for subrogation at the heating, but did not dO so. It merely sent a letter to the injured worker's attorney listing the payments it had made on the worker's behalf and stating "[y]ou may consider this letter as your authorization to protect our interests." Id. 741 A.2d 753-754. In view of the above, we are satisfied that the instant action can be maintained only if plaintiff can show that defendant Roadway agreed to protect its subrogation interest, and failed to do so. Plaintiff has pled no such agreement.6 Absent such an agreement, it was incumbent on the plaintiff to intervene in the worker's compensation proceeding to assert its subrogation interest. Its failure to do so operates as a waiver of the claim against defendant Roadway. Therefore, the demurrer of defendant Roadway must be sustained. ORDER OF COURT AND NOW, this 20TM day of JUNE, 2001, for the reasons set forth in the accompanying opinion, the demurrer of defendant Roadway is SUSTAINED and the complaint, as to defendant Roadway is DISMISSED. By the Court, /s/Edward E. Guido Edward E. Guido, J. Jason Weinstock, Esquire For the Plaintiffs Kevin C. McNamara, Esquire For Roadway Express, Inc. Daniel Deardorff, Esquire For Charles Leese 6 It merely pled that defendant Roadway was aware of the subrogation lien.