                                  [J-92-2014]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


LIBERTY MUTUAL INSURANCE                        :     No. 19 WAP 2014
COMPANY, AS SUBROGEE OF                         :
GEORGE LAWRENCE,                                :     Appeal from the Order of the Superior
                                                :     Court entered September 27, 2013 at
              Appellant                         :     No. 1052 WDA 2012 affirming the Order
                                                :     of the Court of Common Pleas of Elk
              v.                                :     County, entered May 22, 2012 at No.
                                                :     C.P. 2011-485.
DOMTAR PAPER CO.,                               :
                                                :
              Appellee                          :     ARGUED: October 8, 2014
                                                :
COMMERCIAL NET LEASE REALTY                     :
SERVICES, INC., AND COMMERCIAL                  :
NET LEASE REALTY TRUST, AND                     :
COMMERCIAL NET LEASE REALTY,                    :
INC., AND NATIONAL RETAIL                       :
PROPERTIES, INC., AND NATIONAL                  :
RETAIL PROPERTIES TRUST,                        :
                                                :
              Appellees                         :


                                  DISSENTING OPINION


MR. CHIEF JUSTICE SAYLOR                              DECIDED: APRIL 27, 2015

       I would find that the caption as stated effectively makes the injured employee the

use plaintiff. Accordingly, I respectfully dissent.

       The majority notes that a workers’ compensation insurance carrier has no right to

bring suit against a third-party tortfeasor in its own name primarily because actions

arising from tortious conduct are unitary and may not be divided. See Majority Opinion,

slip op. at 16-17. To my mind, these observations are not particularly controversial,

having been established in this jurisdiction for many years.            See, e.g., Spinelli v.
Maxwell, 430 Pa. 478, 481, 243 A.2d 425, 427 (1968) (reaffirming the single-cause-of-

action rule for injuries arising from one tort); Scalise v. F.M. Venzie & Co., 301 Pa. 315,

320, 152 A. 90, 92 (1930) (observing, in a workers’ compensation setting, that any civil

action against the tortfeasor remains invested in the injured employee, albeit the

employer may bring an action in the employee’s name if the employee opts not to sue).

Therefore, it seems to me that the more significant question for purposes of this appeal

is whether the common pleas court properly dismissed the complaint in view of the

specific wording of the caption.

       In the complaint, the plaintiff was captioned as, “Liberty Mutual Insurance

Company, as subrogee of George Lawrence, Plaintiff.” Notably, use of the phrase, “as

subrogee of,” is a particularized means of bringing suit in the name of the use plaintiff.

As such, there was little danger that the cause of action might be divided since any

subsequent action brought directly by Mr. Lawrence would have been barred under the

doctrine of res judicata.1 Thus, by denominating itself as the subrogee of the injured

party, Liberty Mutual filed a complaint of the type endorsed by this Court in Scalise.2

Indeed, Liberty Mutual made this very argument in opposing Dotmar Paper’s preliminary

objection. See Plaintiff’s Memorandum of Law in Opposition to Defendant’s Preliminary

1
  Some jurisdictions express this principle by observing that a subrogee insurance
company is in privity with its subrogor. See, e.g., Geico Ins. Co. v. Graham, 14 N.E.3d
854, 861 (Ind. Ct. App. 2014) (“A subrogee is in privity with its subrogor under the res
judicata doctrine.” (quoting Ohio Dep’t of Human Servs. v. Kozar, 651 N.E.2d 1039,
1041 (Ohio Ct. App. 1995))); Travelers Ins. Co. v. Royal Ins. Co., 841 N.E.2d 287, 2006
WL 223854, *2 (Mass. App. Ct. Jan. 30, 2006) (“The privity of the relevant parties here
to the original action is undisputed: as subrogee of Peabody, the plaintiff stands in the
shoes of the subrogor in whose name the original action was brought.” (internal
quotation marks and brackets omitted)).

2
 To the degree Mr. Lawrence’s rights might be compromised by Liberty Mutual’s action
– since Liberty Mutual was only subrogated to the amount it paid Mr. Lawrence – the
court could have required his joinder as an additional plaintiff.


                             [J-92-2014][M.O. – Baer, J.] - 2
Objections to Plaintiff’s Complaint at 4; see also Brief for Appellant at 28 (renewing the

argument). In my view, the common pleas court should have credited the argument and

overruled Dotmar Paper’s preliminary objection.

       Even insofar as one might argue that this Court’s decisional law only specifically

endorses phraseology along the lines of “for the use of,” “to use of,” or “in the name of,”

common pleas courts may, in the interests of justice, disregard formal defects that do

not affect the parties’ substantial rights. See Pa.R.C.P. 126. Presumably, then, the

court could have – and in my view should have – permitted Liberty Mutual to amend the

caption’s wording accordingly so that it would not lose its subrogation rights, which this

Court has described as “absolute.” Winfree v. Phila. Elec. Co., 520 Pa. 392, 394, 554

A.2d 485, 485 (1989); see also Scalise, 301 Pa. at 320, 152 A. at 92 (“The employer . . .

is not to be denied his right of suit because the employee does not sue, but may

institute the action in the latter’s name.”).

       Although the majority acknowledges this possibility, it elects to bypass the

argument primarily on the grounds that the allocatur grant does not encompass it. See

Majority Opinion, slip op. at 17-18 n.7. I note, however, that the question framed for

review is very broad: “Does Section 319 of the Pennsylvania Workers’ Compensation

Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured

employee to subrogate against the tortfeasor?” Liberty Mut. Ins. Co. v. Domtar Paper

Co., ___ Pa. ___, 92 A.3d 809 (2014) (per curiam). In fact, subrogation by its very

nature involves stepping into another party’s shoes.         See, e.g., Frazier v. WCAB

(Bayada Nurses, Inc.), 616 Pa. 592, 603, 52 A.3d 241, 248 (2012) (“In subrogation, the

insurer stands in the shoes of the insured in attempting to recover what is rightfully

owed to it from a third-party tortfeasor.” (internal quotation marks omitted)); BLACK’S LAW

DICTIONARY 1654 (10th ed. 2014). Therefore, it is not apparent why reaffirming the


                               [J-92-2014][M.O. – Baer, J.] - 3
established precept that an employer or insurer may only bring an action against a third-

party tortfeasor in the name of the injured party falls within the question’s scope, but the

dispositive issue concerning the proper manner of captioning a complaint brought in the

subrogor’s name falls outside of it. Since the majority does not address the merits of

the dispositive issue, Liberty Mutual is effectively put out of court as by now the two-

year limitations period has expired.3

       Accordingly, I respectfully dissent.




3
  The precept that a party initiating an action in the common pleas court should not be
placed out of court due to a non-fatal defect in the filing was delineated in this Court’s
recent decision in Burke ex rel. Burke v. Independence Blue Cross, ___ Pa. ___, 103
A.3d 1267 (2014). See id. at ___ & n.9; 103 A.3d at 1275-76 & n.9. Although Burke
involved an improvident appeal from a quasi-governmental agency, the same principle
logically applies to a complaint filed in the common pleas court’s original jurisdiction and
is consistent with the focus of Rule 126.

It may also be noted that, in Burke, as here, the issue accepted for review centered on
the statute in question and did not expressly inquire into the proper judicial response to
a pleading defect. See Burke ex rel. Burke v. Independence Blue Cross, 620 Pa. 598,
71 A.3d 249 (2012) (per curiam) (reciting the issue as: “Did the Pennsylvania General
Assembly intend to deprive families of children with autism of the right to appeal
insurance denials to court[,] while granting that right to insurance companies?”). Thus,
Burke is analogous to this matter and I am unable to discern a persuasive reason why
Liberty Mutual should be treated differently than the plaintiff in Burke.


                             [J-92-2014][M.O. – Baer, J.] - 4
