Jo Jo Pizza v. Larry Pitt & Assoc.

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2021
• Docket: 127 MDA 2021
• Status: Unpublished

Opinion

J-A23038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JO JO PIZZA AND EASTERN : IN THE SUPERIOR COURT OF ALLIANCE INSURANCE COMPANY : PENNSYLVANIA : : v. : : : LARRY PITT & ASSOCIATES, P.C. : : No. 127 MDA 2021 Appellant :

Appeal from the Order Entered January 15, 2021 In the Court of Common Pleas of Dauphin County Civil Division at No(s): 2020-CV-11402-MD

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY STEVENS, P.J.E.: FILED SEPTEMBER 15, 2021

Appellant Larry Pitt & Associates, P.C. appeals from the Order entered

in the Court of Common Pleas of Dauphin County on January 15, 2021, finding

it in contempt for failing to comply with a subpoena issued by a Worker’s

Compensation Judge (WCJ) in a case which arose as part of a worker’s

compensation proceeding. For the following reasons, we transfer this matter

to the Commonwealth Court.

Briefly, the WCJ had directed Appellant to provide certain materials to

Appellees Jo Jo Pizza and Eastern Alliance Insurance Co. in connection with

litigation in a worker’s compensation matter. Appellees filed a petition in the

trial court on November 20, 2020, seeking an adjudication of civil contempt

for Appellant’s failure to respond to a subpoena. Following a hearing, the trial ____________________________________________

* Former Justice specially assigned to the Superior Court. J-A23038-21

court directed Appellant to comply with the WCJ's subpoena and also assessed

upon him the costs and fees incurred by Appellees due to its failure to comply

with the subpoena. Appellant thereafter filed the instant, timely appeal.

In its appellate brief, Appellant presents the following three issues for

this Court’s review:

A. Whether the [c]ourt failed to consider that the Workers' Compensation Judge lacked subject matter jurisdiction and thereby lacked the authority to issue a subpoena. The cases cited by Appellees asserting authority to their actions were inapplicable in this instance where the work injury claim had been resolved two years earlier?

B. Whether the [c]ourt failed to consider that it is an error of law for the Workers' Compensation Judge to seek a contempt order against an attorney and law firm where the Judge is an officer of the Executive Branch and has no direct jurisdiction over a member of the Judiciary Branch based on the separation of powers provisions of the Pennsylvania Constitution?

C. Whether the [c]ourt erred as am atter of law when assessing legal fees and costs against appellant where the fees and costs were not entered into the record, were not provided prior to the hearing detailing the costs and fees, and where no separate hearing was held to permit [A]ppellant to challenge the reasonableness and necessity of those fees and costs?

Brief for Appellant at 4.

Appellant posits that this Court has jurisdiction of the instant matter

pursuant to 42 Pa.C.S. § 742 which reads as follows:

§ 742. Appeals from courts of common pleas

The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the

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amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.

However, this appeal is from a contempt order which arises as a result

of a worker’s compensation action. We note that appeals from decisions in

worker’s compensation actions fall under the jurisdiction of the

Commonwealth Court. See Kurtz v. W.C.A.B. (Waynesburg Coll.), 794

A.2d 443, 447 (Pa.Commw. Ct. 2002) (citation omitted) (stating

Commonwealth Court’s standard of review in a worker’s compensation case is

limited to determining whether necessary findings of fact were supported by

substantial evidence, whether constitutional rights were violated, or whether

an error of law was committed).

In fact, both parties cite to and rely upon decisions of the

Commonwealth Court in support of their arguments in their respective briefs,

as does the trial court in its Rule 1925(a) Opinion. Moreover, the trial court

agrees with Appellant’s position “that resolution of subrogation rights is within

the sole jurisdiction of the WCJ.” See Trial Court Opinion, filed April 5, 2021,

at 6. Also, Appellees observe that “[a]s represented in the Petition, the

matter was and remains in litigation in the Pennsylvania Workers’

Compensation System.” Thus, we find that the Commonwealth Court has

jurisdiction over this appeal. See Kurtz, supra.

Accordingly, we transfer this appeal to the Commonwealth Court. See

Pa.R.A.P. 751(a) (stating: “If an appeal or other matter is taken to or brought

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in a court or magisterial district which does not have jurisdiction of the appeal

or other matter, the court or magisterial district judge shall not quash such

appeal or dismiss the matter, but shall transfer the record thereof to the

proper court of this Commonwealth, where the appeal or other matter shall

be treated as if originally filed in transferee court on the date first filed in a

court or magisterial district”).1

Appeal transferred. Jurisdiction is relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2021

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1 In light of the foregoing, the Prothonotary’s Office is directed to remove this

case from the Argue 23-2021 list.

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