Loftus, M. v. Decker, K., Appeal of: Eastern

2022 Pa. Super. 44

• Court: Superior Court of Pennsylvania
• Decided: March 10, 2022
• Docket: 611 WDA 2021
• Status: Published

Opinion

J-A02024-22

2022 PA Super 44

MICHELE 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 11725 CD 2020

BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*

DISSENTING OPINION BY MURRAY, J.: FILED: MARCH 10, 2022

The Majority concludes “there [are] insufficient facts for an analysis to

be made as to whether intervention is proper under Pa.R.C.P. 2327.” Majority

Opinion at 8. Critically, the “insufficient facts” necessary to determine the

propriety of intervention are the result of the trial court’s failure to conduct a

hearing on Appellant’s petition to intervene, as required by Pa.R.C.P. 2329.

On that basis, I am constrained to dissent.

Upon careful review, I would conclude Appellant has met the

requirements for a collateral appeal pursuant to Pennsylvania Rule of

Appellate Procedure 313(b). Initially, the denial of intervention to protect

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* Retired Senior Judge assigned to the Superior Court. J-A02024-22

subrogation rights is peripheral to the ultimate resolution of any claim Michele

Loftus (Michele) and her husband, Richard Loftus (collectively, the Loftuses),

file against the third-party tortfeasor, Katrina Decker. See, e.g., Bogdan,

257 A.3d at 756 (concluding underwriter’s right to intervene was peripheral

to a declaratory judgment action that would resolve coverage issues).

Second, a workers’ compensation carrier’s right of subrogation is

protected by statute. See 77 P.S. § 671 (“Where the compensable injury is

caused in whole or in part by the act or omission of a third party, the employer

shall be subrogated to the right of the employe….”). This Court has recognized

that the right of a workers’ compensation carrier to recover its statutory lien,

from an award of money the employee receives in a civil suit, is too important

to be denied review. Gleason v. Alfred I. DuPont Hosp. for Children, 260

A.3d 256, 261 (Pa. Super. 2021).

Third, the averments of Appellant’s intervention petition, if credited,

establish intervention is the only way to protect Appellant’s subrogation rights.

Appellant cannot enforce its subrogation rights in a separate action against

Decker. See Hartford Ins. Grp. ex rel. Chen, 199 A.3d at 853 (“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”). Significantly, Appellant averred that

its insured, Loftus, threatened to abandon their cause of action if Appellant

did not accept less than its statutory lien, thereby defeating Appellant’s

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subrogation rights. Intervention Petition, 2/25/21, ¶ 21. Based on the

Loftuses’ threat, intervention is the only way for Appellant to its subrogation

rights in an existing cause of action. Because Appellant has satisfied the three

prongs of the collateral order doctrine, I would conclude the appeal is properly

before us. See Bogdan, supra.

“[A] question of intervention is a matter within the sound discretion of

the court below, and unless there is a manifest abuse of such discretion, its

exercise will not be interfered with on review.” Bogdan, 257 A.3d at 757

(quoting Wilson v. State Farm Mut. Auto. Ins. Co., 517 A.2d 944, 947 (Pa.

1986) (citations and quotation marks omitted)).

The determination of who may intervene and when intervention may be

prohibited is determined by Pennsylvania Rules of Civil Procedure 2327, 2328,

and 2329. Rule 2327 provides, in relevant part:

[a]t 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

(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[.]

Pa.R.C.P. 2327 (emphasis added). Rule 2328 provides, in relevant part, as

follows:

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

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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.

Pa.R.C.P. 2328(1). Finally, Rule 2329 requires,

[u]pon 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

(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. 2329 (emphasis added). “In ruling on a petition to intervene, the

trial court is required to determine whether ‘the allegations of the

petition have been established’ and, assuming that they have, whether

they demonstrate an interest sufficient to justify intervention.” Bogdan, 257

A.3d at 757 (citation omitted, emphasis added).

There is no dispute Appellant filed its intervention petition during the

“pendency” of the Loftuses’ action against Decker. See Praecipe for Writ of

Summons, 9/25/20; see also Pa.R.C.P. 1007(1) (providing an action may be

commenced by a praecipe for writ of summons). The verified averments in

Appellant’s petition, if credited, support Appellant’s intervention to protect its

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interests. In particular, the petition detailed Appellant’s subrogation rights

under 77 P.S. § 671. See Intervention Petition, 2/25/21, ¶¶ 12-13. The

petition averred Appellant notified the Loftuses and Decker of its lien, id. ¶

15; the Loftuses have not accepted a settlement offer by Decker, id. ¶ 19;

Decker has not served the Loftuses with a rule to file complaint, id. ¶ 20; and

most importantly, the Loftuses threatened to abandon the action,

should Appellant refuse to accept less than its statutory lien rights,

id. ¶ 21.

Here, the trial court failed to conduct the hearing required by Pa.R.C.P.

2329; accordingly, the validity of the verified facts alleged in Appellant’s

petition could not be established. Without a hearing and findings regarding

the verified facts averred in Appellant’s petition, the propriety of intervention

cannot be determined. Consequently, I would conclude the trial court abused

its discretion in denying Appellant’s intervention petition without first

conducting the hearing required by Rule 2329. See Pa.R.C.P. 2329.

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