J-A05033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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.

____________________________________________


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.
____________________________________________


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
____________________________________________


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

____________________________________________


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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