*1 arising before DuBois money chase Casandra OLIVER obligation to remit

Dutch’s contractual Estate; In Howell’s fails. re payment provided opportuni- was Candy. Guido PITTSBURGH, Appellant. OF CITY performed that he ty to submit evidence Pennsylvania. Court of Commonwealth August 2008. See under the contract (Rule Cause); Tr., Hr’g O.R. at 68 to Show Argued May 2009. failed to meet this burden. He 10/14/08. July Decided compliance By failing to demonstrate his also failed agreement, with the lease Guido obligation per- DuBois Dutch’s prove the record lacks evidence

form. Because performance

that DuBois Dutch’s agree- of the lease dependent

the clauses due, prove

ment is Guido cannot DuBois impermissibly payment

Dutch withheld purchase money.

the No interest is there- Estate; In re payable.

fore Howell's Cand

y.5 we affirm.

Accordingly,

ORDER NOW, day July,

AND this 16th of the

the order Court Common Pleas of 14, 2009, County, January

Clearfield dated

is AFFIRMED. Greene, Superior Royal

5. Sladkin v. 359 Pa. 59 A.2d 105 ordered Maccabees de- (1948), relies, posit prothonotary which Guido insurance with the does monies compel purchase an award of on the proceeds interest where to whom were Sladkin, money. spe- seller initiated dispute. due it Once was determined performance compelling pur- cific action plaintiff pro- was entitled to the insurance agreement ceeds, execute an chasers to of sale after Royal pay Maccabees refused to inter- appear failed to on the date set for settle- filing est on monies from the date of the seller, ready, ment. The Court concluded the complaint to the date of first willing agree- and able to execute the sales Relevantly, proceeds. the Court noted ment, purchase was entitled to interest monies, Royal Maccabees was not entitled to money date settlement duty payment having triggered by identified been above, parties’ agreement. As noted Again, agree- the deaths of the insured. parlies' agreement provides here that settle- provides duty ment here that DuBois Dutch’s only satisfactory gen- ment will occur after a purchase money upon convey- to remit the is warranty eral deed is drawn. warranty general deed ance of a free of en- above, Royal For the reasons stated reliance on Schiller v. Mac cumbrances. Guido's Co., (Pa.Su duty there is no evidence DuBois Dutch’s Inurance cabees Life Schiller, per.2000), similarly misplaced. perform arisen. has *2 Pittsburgh, appellee.

Harry Stump, LEADBETTER, President BEFORE: McGINLEY, SMITH- Judge, Judge, JUBELIRER, RIBNER, Judge, COHN SIMPSON, LEAVITT, Judge, Judge, BUTLER, Judge, Judge. Judge BY OPINION President LEADBETTER. Pittsburgh (City) appeals

from the order of the Court of Common (common County pleas) Allegheny Pleas of summary judg- that denied its motion plead- granted judgment ment and By ings in favor of Casandra Oliver. Oliver, in favor of com- granting judgment City from assert- pleas precluded mon lien for following her Act1 benefits to Oliver of a civil action third settlement in a injuries that she sustained party for Af- motor vehicle accident. work-related review, reverse. ter amended, §§ 637-638. 53 P.S. commonly to as the Heart 1. The act referred 28, 1935, P.L. Act of June Act is the “ who underlying dispute. temporary injury facts are not workers sustain ‘in ” in a motor performance Oliver was of one’s duties.’ Id. at performing Act, vehicle while her accident [quoting Section 1 of the result, City police 637(a) deleted)]. *3 duties as officer. As § (emphasis City Lung Act paid Oliver Heart and City In Erie v. Workers' Com approximately the amount of (Annunziata), pensation Appeal Board addition, pursued In Oliver a civil $848. 594, (2003), 575 Pa. 838 A.2d 598 our Su tortfeasor, against third-party claim preme compared Court the Heart and $2,300. eventually which settled for Due Lung Act Compensation and Workers’ City’s subrogating interest Act, particularly noting that the Workers’ against proceeds, Oliver’s settlement Oli- Compensation Act is similar to accident complaint declaratory judg- ver filed a provide compensa insurance and seeks to alia, ment, seeking, inter declaration damage tion commensurate with from acci that under Section 1720 of the Motor Vehi- exchange dental “as a fair for relin cle Responsibility Financial Law every quishing other action (MVFRL), 1720, § Pa.C.S. 601, employer.” Id. at 838 A.2d at 602 could not seek reimbursement from her (internal omitted). quotation The Act is third-party recovery for benefits it legislation considered remedial and is lib pursuant to the Heart Act. erally construed in favor the employee. concluding that the entitled 601-02, However, Id. at 838 A.2d at 602. subrogate against recovery, Oliver’s Act, compensation for earnings pleas compared the Heart and loss employee’s is limited to 66 of an% Lung Act with Compensation the Workers’ average weekly wage, which limitation Act,2 changes examined the to the statuto- “serves to potential [ameliorate un the] ry scheme for coordination of benefits fol- 602, employers.” fairness to Id. at lowing amendments to the MVFRL Act A.2d at 602-03. 1993,3 44 of and considered various deci- sions of this court addressing the issue. hand, On the other the Heart and While we engage analysis, in a similar Act, primarily police which covers so, reach a contrary doing conclusion. In work, firefighting, and other jobs involving we reaffirm our decision Brown v. Ro that, public safety, was created to “ensure (Pa.Cmwlth.1999). senberger, 723 A.2d 745 if employees injured these were or other wise disabled in the course of carrying out

Before addressing arguments ap- on duties, their hazardous would be peal, we review the relevant statutory guaranteed continued full income until framework and begin, decisional law. To 602, duty.” their return to Id. at we note that the Compensation Workers’ (internal at 603 quotation emphasis provides temporary “ omitted). Unlike the Workers’ permanent injuries Compensa ‘arising in the Act, course of enactment was employment one’s motivated and related ” Police, i.e., thereto.’ best of the public employer, Allen v. Pa. interest State 436, (Pa.Cmwlth.1996) promise A.2d 437-38 of full income to [quot- employees in 301(c) Act, industry of the hazardous could serve to attract P.S. 411(1)]. qualified profession. The Heart individuals to the provi- Id. limited, however, 602-03, sions are more permit- at 838 A.2d at 603. Unlike the ting recovery only Act, specified for a class of Compensation Workers’ the Heart 2, 1915, amended, 2, 1993, (often 2. Act July of June P.L. 3. The Act of P.L. 190 1-1041.4; 44). §§ 2501-2626. referred to as Act Appeal Compensation Board strictly Id. at Workers' is construed. Lung Act (USF&G), addition, 566 Pa. A.2d at (2001), passage to 1993 and the receipt prior of work- current contemplates the exception an provided in the Act the MVFRL “[N]othing compensation: ers’ subrogate against an employer’s Compensation Act eliminates Workers’ pay employee’s third-party recovery. Spe an an work- responsibility of cifically, injured employee precluded the MVFRL compensation to ers’ in a employee recovering bene- receiving who obligation to amounts or she received [employer’s] .... tort action he fits benefits is concurrent pursuant pay *4 of,

with, pursuant Act, in its obligation employer precluded lieu an compensation scheme.” employee’s workers’ subrogating against to the its 605, (quotation, at A.2d 604-05 Id. at 838 proceeds to recover amounts as work omitted). However, emphasis citation former 75 compensation. ers’ See Pa.C.S. by received an 1722; any workers’ Hannigan §§ see also v. 1720 the Heart compensated (O'Brien under employee Comp. Appeal Bd. Ul Workers' to over (Pa. must be turned Station), A.2d 632 tra Serv. 860 1 of the Heart and employer. Cmwlth.2004); Specifically, for Fulmer. 637(a). Act, § provided: of mer Section 1720 the MVFRL of the ... of arising actions out use Compensa- the Workers’ Finally, while vehicle, be right a motor there shall with the provides employer tion of or reimbursement from a right subrogate against em- to express tort recovery claimant’s with to recovery to extent third-party ployee’s provid- is workers’ benefits right no similar paid, of benefits to, [relating Act.4 under section 1711 Not- available for in the Heart ed alia, required inter statutory minimum medical express the lack withstanding benefits], of, availability 1712 to authority subrogate, employer’s right [relating to loss, medical, alia, at subrogate recognized has been com- inter income acciden to benefits], Police, v. 1715 Pa. State tal death and funeral or mon law. See (1994) availability adequate lim (relating to 167 Pa.CmwIth. its) payable South a [citing Topelski v. Universal Side or or Autos, Inc., group Pa. 180 A.2d 414 or other ar program, contract (1962); Rap rangement or excess Philadelphia Philadelphia primary whether Co., (relating Transit 337 Pa. under section coordina id benefits).[5] (1940)]. tion of in provided, Former Section turn: employer’s right subroga- While damages against action a any for tion under the Workers’ ... the ... absolute, arising out of use Thompson v. tortfeasor see is otherwise compensation, policy Except for right workers' employer's stems 4. An Compensa- pursuant of the Workers' from Section 319 of insurance issued or delivered Act, provides: which P.S. Any pro- subchapter primary. this shall be compensable injury in is caused “Where the gram, group arrangement contract or other part or the act or omission of whole payment such as described party, subrogated shall be third (2) 1711, 1712(1) and or 1715] [sections right employe ... such to the provision shall be construed to contain party extent third provided therein shall be in that all benefits employer....” by the payable [Act] under this any duplication of valid of and not in excess 1719(a) provided collectible first provides that: 5. Section vehicle, a who has the person subrogate against of a motor carrier receive benefits under the eligible to any the claimant receives in con- subchapter, forth in this coverages set nection action.” Id. compensation, pro- or or Consequently, Assembly “the pre- General arrange- gram, group contract or other served scheme which allowed claimants as defined payment ment for of benefits prevented to made whole but their be dou- (relating section to coordination recoveries, shifting ble while the ultimate benefits) precluded shall be from re- employers from innocent burden and their amount covering the of benefits or to responsible carriers tortfeasors and payable subchapter, this or work- pay those insurers who them stead.” compensation, any program, ers’ Id. group contract or other arrangement law, to the relevant As decisional benefits as in section defined There, first turn Fulmer. a state troop- declaratory judgment er commenced a ac- Thus, we have observed that under the this tion in court to determine whether scheme, statutory former leg- the “obvious *5 former Section pre- 1720 of MVFRL intent, islative was to mandate seeking cluded State Police from reim- compensa- ultimate burden recovery bursement from his tort bene- tion remain payments with Workers’ Com- paid fits under the and Lung Act. pensation passed insurance and not be on ” petitioner argued to the automobile insurance carrier.... benefits fell within the catch-all (internal at Hannigan, quota- 636 “or phrase paid payable benefits or by a omitted). citation and group or program, arrange- contract other However, legislature with Act 7 agreed ment.” We that Section 1720 ap- concurrently repealed Sections benefits, such plied stating: 1722 with respect receipt pay- believe that Heart and [W]e ment compensation of workers’ benefits.6 fall benefits within the “benefits in lieu result, “in As a an involving action an paid or payable” thereof was [which automobile post-Act employee’s statutory language that was in recovery effect by is not reduced compensation petitioner amount of workers’ when was benefits received, compensation language commenced his civil action] section or 1715 or workers' both the At time of Fulmer's and the compensation. action, commencement of his civil defined, 1719(a). § 75 Pa.C.S. As the term actually provided: "In arising actions "program, group arrange- contract or other vehicle, the ... out of use a motor there "includes, to, ment” but is not limited bene- right be no shall or reimburse- payable by hospital plan fits corporation or from a ment claimant’s with professional health corporation service sub- benefits, respect compensation to workers' ject (relating hospital to 40 Pa.C.S. Ch. 61 1711, 1712, available benefits under [section plan corporations) (relating profes- or 63 or 1715] or in lieu or benefits thereof plan corporations).” sional health services added). payable.” (Emphasis The "benefits 1719(b). Id. at Section language in lieu thereof” was amended in 25(b) 7, 1990, 6. Specifically, provid- February of Act the Act P.L. 11. provisions ed that: "The of 75 Pa.C.S. opined subsequent change We that the in lan- §§ repealed 1720 and 1722 are insofar as guage merely a clarification rather than compensation payments relate to workers’ therefore, and, not critical an alteration to the Compensa- other under the Fulmer, analysis. ultimate A.2d at 619. tion Act.” employer’s Benefits received under action as well as an right this section. effectively re- the Heart and to subrogate recovery, compensation benefits place workmen’s Commonwealth should be treated identi- pro- employees for those covered cally to a workers’ carrier provided peti- visions. These to benefits under the salary during tioner with a full rate of Act. The defendant driv- temporary incapacity required his however, argued, er repealer that Act 44’s compen- him to turn over all workmen’s applied only to workers’ he sation benefits received [State and, therefore, Brown could not 637(a). face, On its Police]. recover under that act. of Section 1720 language contested issue, In addressing pleas common attempts potential to include all those that, although noted a plaintiff historically may too nu- benefits which have been right plead had the loss of wages and Furthermore, to mention. it is merous medical bills in an action to recover dam- well-recognized rule that the Financial ages sustained a car accident Responsibility liberally Law is to be con- employer had a concurrent to subro- strued. gation,8 rights such common law sup- were (citation quotations 647 A.2d at 619 planted by the enactment of the MVFRL omitted). that, Accordingly, we concluded including former Sections 1720 as with workers’ According and 1722. pleas: Section 1720 barred the legislature Because was silent as to seeking reimbursement for Heart and provider whether a benefit *6 Lung paid Act benefits to a claimant. We Heart Lung subject and Act was to the the specifically acknowledged changes preclusionary same effect of [former 44 wrought by express Act and declined to MVFRL], Section 1720 of the the Com- to the effect that opinion as monwealth up Court took the issue in 25(b), which partially repealed Sections There, Fulmer.... [the Court] held 1720 and 1722 with to workers’ received, that under the Heart “benefits compensation had on the issue. Lung Act effectively replace work- Fulmer, See 647 A.2d at n. 3. 618 compensation men’s those benefits for Following passage of Act the employees by covered provisions.” opportunity court had the to address the holding The clear this was to effect of There, Brown, same issue in Brown. Lung treat Heart and Act trooper, injured state was a car accident same as workers’ compensation benefits performing while her duties in 1995. The purposes prohibitions to sub- for Commonwealth Brown Heart and rogation pleading in sec- found Lung during incapacity. Act her tions 1720 and 1722 the MVFRL. eligible Brown was also to receive workers’ identity Given the virtual common ac- and those benefits were (and by corded to the above benefits Brown, over to the Commonwealth. seek- necessary provid- inference the benefit plead, prove and recover ers) can defendants now claim that the amounts under the two statutes her identity common dispa- be severed and driver, civil action the other ar- rate treatment be accorded to gued pleas before common that since Act employees employ- 44 who have different employee’s right restored to recover workers’ benefits in a third- ers[?] Autos, Inc., (1962). Topelski

8. See 414 Universal South Side 407 Pa. repeal peti- virtue It is WCJ denied modification [the clear tion, been prohibition concluding of Sections 1720 and officer had 44], receiving Lung pre-1984 principle Act Act benefits must than unjust rather workers’ bene- equity and enrichment operate recovery against Presumably, to allow fits. this conclusion stemmed again third-party tortfeasor all losses from the conclusion that the em- WCJ’s sustained, ployer improperly unilaterally and must also allow a benefit terminated subrogated any recov- Heart and Act without a provider Lung to be ery process hearing. between due The Board affirmed. benefits. distinction em- employer appeal, Heart On we addressed whether the bene- employer ployer improperly Act and an under other had terminated the provider schemes irrelevant upon fit these purposes. discharge employer office’s and whether had an interest in enforceable Rosenberger, Brown v. 40 Pa. D. & C. 4th recovery. addressing (C.C.P.Phila.1998) (emphasis 438-39 footnote, arguments, these we noted in a omitted), added and on citation affirmed that, without further discussion “Heart (Pa. opinion, trial court A.2d not subject benefits are to sub- Cmwlth.1999). noted, As court af- this [Fulmer, rogation. 167 Pa.Cmwlth. published opinion upon firmed based (1994).]” Williams, A.2d See pleas’ reasoning. at 762 A.2d n. 5. We did not discuss the Subsequently, plaintiffiemployee’s MVFRL, Act 44 nor amendments right and the employer’s recover that we had a contrary reached conclusion subrogate for Heart under MVFRL Ultimately, in Brown. concluded paid, benefits received improperly had not terminat- in the compen- touched ed benefits and that sation Pittsburgh arena v. Work the Board in affirming had erred the deni- ers' Appeal Board *7 al of the employer’s petition modification (Williams), (Pa.Cmwlth. 810 A.2d 760 i.e., equitable on in grounds, unclean hands 2002). There, city police officer was unilaterally terminating fur- benefits. We injured in a work-related car accident in ther noted permissi- 1994; Lung the officer received Heart ble, citing Section 319 of the Workers’ Act procured benefits and Compensation Act. recovery. employer the terminated Lung officer’s non-precedential opinion, Heart and Act benefits fol In a the Unit- lowing discharge his for Appeals conduct unbecom ed States Court of the Third for began work payment recently officer followed to con- Circuit Brown compensation ers’ Employer benefits. clude that Wilkes-Barre had sought subrogate then third- right subrogate against officer’s its via a petition, third-party recovery modification to the extent of Heart so, objected which the Lung paid. doing claimant to on benefits grounds statutory changes was not entitled court considered the re- Fulmer, pursu sulting for from reimbursement benefits Act well as Cole, ant to the See re No. Heart and Act.9 Brown Williams. pleas apparently 9. Common em- Act benefits were involved. considered ployer's ultimately Williams, right subrogate con- but at 762 n. 4. 810 A.2d right cluded no such existed because Cir.2009). (3d schemes, 08-1412, our law recog- decisional has also WL Williams, purposes nized that for of an acknowledged employer’s but The court right subrogate, statement was noted aforesaid Heart and be in should treated conclusory footnote which the only a payments pur- the same manner as made holding depend. did not suant to the Workers’ Act. in legal the above framework With instance, in Philadelphia Rapid For Tran mind, on arguments we now turn to the Company, Supreme sit our Court acknowl pur contends that for appeal. edged city-employer’s common law and an poses construing MVFRL for Heart and Lung employer’s right subrogation, Act benefits to firemen in a given must be the same so, motor vehicle accident. In doing compensation effect as workers’ benefits. Court described the benefits as: “The According City, purpose the similar paid by city sums here to the firemen our of the two benefit schemes as well as strictly were not speaking wages. They requires decisional law consistent treat disability were the nature of compensa agree. ment. We tion, similar to compensation workmen’s Despite qualification, the differences in payments and payments under an accident coverage, amount each and duration policy insurance be should treated in essentially provides benefit scheme an em- the same manner.” 337 Pa. at ployee of medical bills and Accord, Potoczny Vallejo, at 435. injury for an sustained (1952). Pa.Super. work, connection with where the em- his above, Similarly, pur- as we noted for ployee required relinquish been has poses construing employer’s right to law rights against employer. MVFRL, subrogate under the we conclud- Moreover, employee longer if a disabled ed that Heart and Lung Act qualifies constituted “benefits lieu [of per- either because his has become compensation]” workers’ because “ef- manent or he discharged employ- fectively replace workmen’s conduct, wrongful ment for com- those employees covered if pensation employee will continue provisions. [They] provide [employees] an earnings continues to suffer loss as a with a full salary during tempo- rate of [a] injury. Finally, result of his the similar rary incapacity require employee] [the purpose nature and of the two benefits is to turn over all workmen’s provision evidenced the coordination set ” *8 benefits 647 A.2d at [received].... in forth Section 637 of the Heart and Brown, Subsequently, in agreed this court Act. an employee While is entitled to con- with common pleas’ observation that Ful- receipt current of both work- mar demonstrates that Heart and Lung ers’ received must be remit- benefits should be treated the same as employer long ted to the as as the claimant pur- Workers’ benefits for receiving pursuant is to the Heart poses of 1720 and 1722 Sections of the Thus, statutory provi- and Act. Notably, MVFRL. 723 A.2d at 747. our alone provide sions reasonable basis for of pleas’ affirmance basis inconsistent treatment with in opinion agreement Brown also indicated employer’s right subrogate against (1) pleas’ with common conclusions that: third-party recovery. pre-1984 principles Act 44 restored the Moreover, enrichment, notwithstanding equity unjust the acknowl- which allow edged statutory recovery against differences in a third-party tortfeasor employer, negligence, innocent of correspond- and a

for all sustained losses provider pays nothing.” in the benefit subro- in the end ing right (2) recovery; any distinc- gate against any Comp. Hannigan Appeal Workers' Serv.). employers providing tion between (O'Brien Station), Bd. Ultra irrele- statutory the two schemes is under (Pa.Cmwlth.2004) (inter A.2d principles; of these vant to enforcement omitted). nal As Fulmer quotations (3) failure to Assembly’s the General recognized, wage HLA and WCA in Act include pur- medical benefits are similar for the not command a different repeal 44’s did subrogation poses pleading that in Finally, noting it bears conclusion. Sections of the MVFRL. context, former Justice a different Chief The HLA and both WCA ensure that concurring dissenting Cappy, his employees they cover receive lost Erie, recognized the two opinion City of after wages and medical benefits suffer- similarity: statutes’ injury prevents them ing from the Heart and [B]oth working period some time. Compensation Act relate not may seek HLA employee Where only person, to the same but also to the from a in a tort thing-compensation same for a work-re- action, purpose has Thus, the are injury. lated two statutes pertinence much for HLA benefits as Moreover, pan Legisla- materia. it does for benefits. After review- WCA clearly ture intended the two statutes to law, Pennsylvania case we conclude in a together be construed consistent that Section does bar Cole fashion the fact that the Heart and pleading payments HLA in his Act, terms, specifically rec- action, personal and Section 1720 ognizes police officer’s concurrent re- not bar the from asserting does ceipt of benefits under the Workers’ equitable right subrogation against Compensation Act. recovery. Cole’s 575 Pa. at 838 A.2d at 607-08. Final- at *4 (unpublished Id. 2009 WL 1090329 Brown, ly, following the Third Circuit stat- opinion). ined In re Cole: only appellate support Not does our law agree reasoning, We Brown’s the conclusion that the is entitled to moreover, comports, pur- which with the third-party re- subrogate Oliver’s pose in Penn- as stated statutory covery, general but rules con- sylvania case law: command the same conclusion. struction “The for the of subro- rationale statutory As rules of our construction gation prevent threefold: double clear, legislative make in- ascertaining injury by for the same tent, presume legislature that the did claimant, to insure that the not intend an absurd or unreasonable re- compensa- is not compelled to make sult, legislature that the intended to favor payments necessary by made public opposed any pri- interest as party, of a and to negligence third *9 vate interest and did not intend result escaping prevent party a third from rights. violative of constitutional See 1 liability negligence.... for his Sub- 1922; Responsi- § Pa. Financial Pa.C.S. rogation just, is because the bility Assigned English, Claims Plan v. who the bears the full caused (1995). Pa. 664 A.2d 84 burden; ‘whole,’ employee is made principles, these we Applying than what conclude but does not recover more whole; Act 44 to requires legislature he to be made intended Finally, we rendered our decision Lung benefits as well apply to years ago. ten in Brown more than Oth- benefits. Compensation Workers’ changes any to make legislature’s failure erwise, would be arbitrary distinction our deci statutory following scheme to employers claimants and between drawn the presumption creates sion Brown paid were whether benefits based interpretation was in accord with our Act or Compensation Mosley legislative intent. v. Workers' See Obviously, both Act.10 the Heart and (City Pittsburgh), Comp. Appeal Bd. of are liable for public employers and private (Pa.Cmwlth.2007) and cases of workers’ payment cited therein. However, com- unlike workers’ benefits. only pay public employers pensation, our deci Accordingly, wé reaffirm Therefore, if benefits. sion in Brown and conclude that only permit to Act 44 is construed pleas declaring erred was compen- that has Oli precluded subrogating against from subrogate against third-party so, sation to recovery. doing third-party ver’s injuries in a motor recovery for sustained expressly suggestion we disavow accident, Williams, em- public the innocent contrary vehicle 810 A.2d 760. (and fisc), conclusion, has public which ployer reject this we also reaching the same benefits under contention that Section 23 of Act Heart Oliver’s circumstances, recovery City’s protects will bear the burden her from the the actions subrogation provides make necessitated interest. Section 23 payments that; private party. Inasmuch as negligent of a underlying both Commonwealth,

the rationale sub political 44 is the burden from divisions, and Act to shift employees their officials and responsible tortfea- employers to scope innocent within the their duties acting sors, construing legislative Hannigan, enjoy sovereign and benefit from shall protects immunity in a manner which claims sub- scheme official rogation but not that from a claim private interests reimbursement favors to work contrary statutory respect to our rules of with ant’s public [emphasis an unreasonable ers’ construction renders added].[11] result. Sheils, case, (Bkrtcy. v. Although we tention is Cole B.R. 93

10. not raised this note M.D.Pa.2007), Bankruptcy Court basis wherein the that we can envision no rational for treatment, pursuant city- implicat- drawing disparate concluded that such employee, who received constitutional concerns. injuries Act for sustained Statutory appears in accident, in a work-related motor vehicle of the Work- Historical Notes to Section 305 city-employer's claim from the immune Act, [per- ers' with recovered monies compen- taining to “Insurance of appeal, in a On the United action. employer; appeal from denial of sation that, while it did States District Court noted insure; penal- exemption; failure effect of necessarily disagree Bankruptcy payment”]. ty; remedies failure secure conclusion, affirming on differ- it was Court’s grounds. ent Wilkes-Barre v. inconsistency See Ignoring the this assertion Sheils, (M.D.Pa.2008). is, (that On B.R. 871 fur argument statu- with Oliver’s earlier Ap Court of referring compen- appeal, ther United States tory language to "workers’ peals the Third Circuit vacated bene- cannot be construed to include sation” Act), decision in Brown Ro of this court’s fits under the Heart and basis *10 (Pa.Cmwlth. 1999). senberger, 723 A.2d 745 only support cited for this con- note that Clearly, Section 23 preclude does not rogation rights, by is belied the fact that subrogating against from its own Claimant did file a civil against action employee’s third-party recovery.12 Second, the City If it grant- recovered. did, only governmental employees governmental entity would “immunity section; be mentioned from inclusion of claims of or reim- governmental employers bursement would be from a purely claimant’s tort recov- Rather, meaningless. ery protects Section 23 compensa- governmental parties benefits” does from claims not even remotely asserted affect an directly against employer’s them right for Section 319 reimbursement seek for reimbursement from paid as a result of the claimant from a tort negligence governmental of a that the claimant tortfeasor. governmental received from a entity This section was recently addressed in the same work-related that em- Fox v. Workers’ Compensation Appeal ployer paid Third, compensation. by its (PECO Co.), Board Energy plain language, all Section 23 of Act 44 (Pa.Cmwlth.2009). There, after sustaining provide does is governmental agencies injuries, work-related employee PECO with immunity from claims that failed in commenced civil action against the City protect order to an employer’s workers’ Philadelphia, claiming injuries that his compensation subrogation claim. Be- by were caused the City’s negligence. A cause is seeking subrogation [PECO] monetary settlement agreement was from $150,000 Claimant for the he re- reached, wherein City agreed also ceived from the City, not from City indemnify the plaintiff itself, Section 23 of does not claim made employer. his PECO then foreclose from enforcing [PECO] its petition filed a to review compensation reimburse- benefits with the workers’ compensation rights. ment authorities, maintaining right to assert a subrogation lien under the Workers’ case, In this

Compensation because [PECO] Act. is not opposed claimant seeking to recover petition subrogation lien ground mon- that Section 23 ey City from the but rather precluded from the PECO from recovering its lien. settlement already received granted WCJ Claim- petition, concluding ant, the properly WCJ found that that Section Claim- 23 did not bar PECO’s lien ant was required to reimburse his Em- because it had not filed an directly action ployer from the tort recovery from against City. The Workers’ Compen- City for workers’ compensation paid. sation Appeal Board appeal, affirmed. On 14,15 stated: Id. at (emphasis in original). not, 23 of Act 44 does Accordingly, based the foregoing contends, Claimant governmen- make a reasoning, we conclude that tal employer immune subrogation. from subrogate entitled to against Oliver’s First, Claimant’s argument that because third-party recovery for the amount of he had no right to recovery against the Heart paid. There- and, therefore, fore, had no sub- pleas’ [PECO] order is reversed. Cole, (3d Cir.2009), See No. 08-1412 2009 WL precluded ers would be subrogating 1090329. employees' third-party their recover- ies, private employer's while retained the Indeed, Oliver's tortured construction subrogation provided by Section 319 leads to an public absurd employ- result—all of the Workers' Act. *11 City and thereafter indicated that it

ORDER for would seek benefits that it 2009, NOW, day July, this 17th of AND attorney placed the paid. disput- Oliver’s Pleas of of the Court Common the order of ed amount in escrow and filed an action for above-captioned County in the Allegheny declaratory judgment and then a motion hereby REVERSED. matter The judgment pleadings. City for filed its cross-motion. Judge BY DISSENTING OPINION SMITH-RIBNER. 25(b) City contends that of 1993, 2, 190, July P.L. Act of No. I decision Respectfully, dissent from the (Act 44), partially which Sections repealed that reverses the order of majority of the 1720 and 1722 of the Motor Finan- Vehicle Allegheny Pleas of Common of the Court (MVFRL), cial Law Pa. Responsibility County judgment the motion for granting 1722,1 §§ they pertain 1720 and as to C.S. pleadings by Casandra Oliver filed on Compensation under the (Oliver) benefits declaratory action judgment in her Act, 2, 1915, 736, reimbursement of denying of June P.L. Act as to (City) Oli- Pittsburgh amended, 1-1041.4, 2501-2708, §§ 77 P.S. commonly known as ver under the statute Lung also to Heart and Act applies bene- Act, June Lung Act of 25(b) provides: provi- fits. “The amended, P.L. as §§ Pa. sions C.S. 1720 and 1722 are reversing, majority §§ 637-638. repealed they as relate workers’ insofar decision in Brown reaffirms the erroneous compensation payments or other benefits (Pa.Cmwlth. Rosenberger, the Workers’ Act.” 1999), where this affirmed the trial Court added.) (Emphasis contends opinion on court’s order the basis of principles equity holding and the that a Heart and determining require subrogation rights Brown reinstat- subrogation rights in provider had 44 to ed Act be extended to Heart and recovery employee’s tort in a third- providers. Act benefit It asserts arising tortfeasor lawsuit out salary of an officer’s full maintenance or use of motor vehicle. Heart is “compen- notes, the are majority As the facts un- sation” and therefore different from disputed. Oliver was in motor workers’ and that 23,1996 on vehicle accident December dur- the Workers’ Compen- police employment her course of pari sation Act are in materia as She received in Heart and officer. $848.48 persons relate to “the same class of or during Act benefits time she things” accordingly should be con- personal work and also filed a could not together pursuant strued Pa.C.S. action tort- $2,300, § eventually feasor. She settled pro- relating subrogation,

1. Section claimant's vides: (relating available under section 1711 arising out the maintenance actions benefits), (relating required avail- vehicle, be no benefits) (relating to or use a motor there shall ability of or 1715 avail- limits) ability adequate or or reimbursement *12 1244 25(b) 1971(c), § argues that Section of Act 1

Oliver Pa.C.S. which states that a only to workers’ not be applies repeal statute should construed to or under paid other benefits the Workers’ an earlier statute unless the two are irrec- oncilable, that Compensation agrees Act and Heart and and she with the trial Lung Act benefits are neither. The Heart is no court there conflict construing Act was enacted to full provide being Heart and benefits as exempt officers, all salary police firefighters to and workers’ benefits as be- other law enforcement injured subject officers ing subrogation.

the line of their who are duty temporarily motion, In Oliver’s granting the trial incapacitated performing their duties. part court reasoned in as follows: Moreover, and Lung the Heart Act is not through administered the workers’ com- Even though pensation system, in City Scranton Compensation Workers’ statutes have Compensation Appeal Workmen’s construed, similarly partial been re- (Walsh), Pa.Cmwlth.89, Board § speaks peal only to “workers’ (1989), A.2d 937 the Court held that sums compensation payment or other [sic] paid under that Act were not workers’ under the Compensa- Workers’ compensation benefits and hence could Emphasis tion Act.” added. There is no be job modified failure follow on up ambiguity provision. in this The Legis- referrals. § lature repealed has not 1720 with re- spect to Heart and Lung benefits. It is Noting first that the title preamble not for this to do Court so. of a may statute be considered under § 1924 in interpreting meaning, Pa.C.S. opinion its Trial Court at 11-12. The trial Oliver refers to stating Section of Act 44 analyzed prior court decisions concerning that it amends Section 101 of Act of of Heart and Act bene- (P.L. 2,1915 338), June provide No. fits. v. Pennsylvania State Police, act shall be called and cited as the 167 Pa.Cmwlth. (1994), ap- Act and a trooper shall state while ply injuries to all occurring riding within the as a passenger in a state police Commonwealth. adopts Oliver the statu- filed vehicle. He a third-party lawsuit tory construction rule at 1 Pa.C.S. when the 1984 version of Section 1720 was 1921(b) that if the words of a statute are in effect and when the phrase current- clear unambiguous, are in ly reads “benefits payable by or 25(b) may letter of it program, group contract arrange- or other disregarded not be pretext under the primary ment whether or excess” original- pursuing spirit. well ly Oliver cites as read “benefits lieu thereof or payable by program, group coverages contract or set forth this sub- arrangement primary chapter, other whether or ex- compensation, or any workers' or (relating program, group cess under section 1719 coordi- arrange- contract or other benefits). added.) (Emphasis payment nation ment for of benefits as defined in 1722, relating preclusion (relating of re- section 1719 to coordination of benefits, benefits)

covering required provides: precluded shall be from recover- any damages against action for payable tort- amount or feasor, any or in subchapter, uninsured or underinsured compen- this or workers’ sation, proceeding, arising program, group motorist out of the contract or vehicle, maintenance arrangement or use a motor other of benefits person eligible who is to receive benefits as defined in section 1719. tempts potential to include all those ben- trooper received payable.” may efits which have been too and the State Police numerous Lung Act *13 Furthermore, it a claim to mention. “well- subrogation against his tort sought recognized rule that the Financial Re- trooper argued that clear The settlement. liberally sponsibility Law is be con- precluded subrogation intent legislative strued.” recovery. On a vehicle tort claim motor hand, acknowledging that

the other while Fulmer, (quoting Rimpa 647 A.2d at 619 v. Lung spe- Act contained no Exch., 287, Pa.Super. Erie Ins. 404 590 employer’s an provisions regarding (1991)). cific rejected A.2d The Court subrogation, the State Police ar- the State attempt Police’s equity, that broad considerations of gued plain language defeat the of Section 1720 unjust enrichment re- good conscience and by raising arguments upon princi based subrogation that it be afforded quired ples equity, it that the and concluded recovery, rights citing Topelski in the tort permit subrogation against statute did not Autos, Inc., Side v. Universal South Lung the tort Act Heart (1962).2 339, 180 Pa. A.2d trooper benefits that received. The Court’s result would be same under pointed The out in Fulmer that Court well, the 1990 amendment as which substi became effective October MVFRL language tuted current for the former super- if it would applicable 1984 and that in lieu paid payable.” “benefits thereof or prior sede the case law where a claimant’s injury arose out of a motor vehicle acci- In Oliver’s case the trial court indicated Moreover, by dent. recoveries that the issue of for Heart and compensa- claimant who received workers’ Act Lung again benefits was not addressed likewise would be shielded Quoting until Brown. one statement from subrogation rights Fulmer, “[bjenefits based 647 A.2d at assumption that the accident arose out of Lung received under the Heart and Act the maintenance or use of a motor vehicle effectively replace compensa- workmen’s applied and that the MVFRL as it existed employees tion benefits for those covered before Act The Court concluded by provisions,” its trial Brown court applied Section 1720 to benefits under unsupportable leap made an that Heart Lung the Heart and because Act benefits were to be treated within the qualified “benefits lieu there- the same as workers’ bene- payable” language or of that sec- pre-1984 prin- fits and therefore that “the The explained: tion. Court ciple equity unjust enrichment must again operate recovery against Benefits received under the Heart and to allow effectively replace third-party workmen’s tort-feasor for all losses sus- tained, pro- a benefit employ- benefits for those and must also allow any recovery vider to be provisions. subrogated ees covered These provided petitioner with a full benefits. The distinction between em- inca- salary during temporary ployer rate of his under pacity required provider him to turn over all under other benefit purposes.” he re- schemes is irrelevant for these workmen’s face, Rosenberger, to the PSP.... On its the Brown v. 40 Pa. D. & 4th ceived C. (1998). The trial court cited no language contested at- point Topel- subrogation] equitable principles and 2. The Court mentioned a made in under conferring "Pennsylvania only jurisdiction in the absence of a such ski that is the statute Fulmer, government rights right.” that allows a unit such 647 A.2d at 619 n. 4. [to court noted court authority equity for its conclusion that trial the federal operate to allow a determination Wilkes-Barre principles again must Sheils, (M.D.Pa.2008), provider to B.R. 871 Act benefits motor ve- subrogate against precluded Section 1720 of the MVFRL recovery. tort claim hicle of Heart Act bene- language fits “benefits trial in Oliver’s case criticized court payable by program, group contract or Brown, noting rationale in that it un- other referenc- arrangement” without ever ex- dercut intent of Section 1720 *14 ing Brown. This decision however was subrogation the panding right to to vacated, by and the case remanded was receive, might benefits that a claimant ex- the in an unpublished opin- Third Circuit those in the cept separately enumerated majority ion in heavily that the relies MVFRL, noting ambigui- and also that no Cole, 08-1412, analysis. its See In re No. in ty repeal exists the 1993 of Section 1720. (3d 2009). 2009 1090329 Cir. April WL It relates solely compensation to “workers’ The unpublished Third Circuit’s decision is the payments other benefits under Court, binding not on this and even if the Act.” Compensation Workers’ Trial court binding it decision were nevertheless could Also, Opinion Lung at 7. the Heart and not utterly be followed because it fails to legisla- Act has and the existed since support reversal of the court here. trial repealed ture could have Section 1720 with respect to Act had it to do that intended The in In re suggested Third Circuit so, but it did not. key that a rationale Cole to Fulmer’s hold- longer existed because Section right for Heart and subrogation longer of the MVFRL no barred an em- Lung again Act in benefits was mentioned ployee recovering from amounts in a third- City Pittsburgh Compensa v. Workers' that corresponded tort action to (Williams), Appeal tion Board A.2d received workers’ benefits (Pa.Cmwlth.2002), a police where offi (due repeal). to the 1993 It then went on cer was in a motor vehicle accident agreed to discuss Brown and with its rea- (after February in Act 44’s effective soning, the that the despite obvious fact date), and he Heart and Lung received Act trial authority court in Brown cited no benefits. The officer terminated for decision, its interpreted a statement from conduct, unrelated and his benefits were and, out of context more funda- converted to workers’ result mentally, apply failed to follow ing in a lower and/or payout. When the officer plain language of Section 1720. In addi- action, his third-party settled tort tion, the Third not Circuit did discuss sought subrogation. WCJ and the except holding to that Williams note Compensation Appeal Workers’ Board depend principle did not stated in that payments found made i.e., footnote that Lung Heart and Act prior Heart subject are not un- benefits subject subroga termination were not holding der Fulmer. The in ob- Williams tion under Fulmer. The Court viously depend principle not did on that finding Williams reversed the that because this Court the em- decided City improperly converted Heart ployee’s Act benefits were compensa benefits to workers’ tion, clearly properly compensa- but it in a converted workers’ stated footnote tion, under settled law Lung Act were had subject subrogation. No party ad Also,

dressed Brown Williams. there. are in the statutes not favored law. 1 recognize Third failed Circuit Delinquent 1971(c); In re Tax plain unequiv- Pa.C.S. is repeal provision Sale, 411, 477 A.2d 83 Pa.CmwIth. ocal.3 (1984). 1 of Act 44 and the Sec- 25(b) of Act 44 reads: Again, Section 25(b) solely to relate language §§ 1720 and provisions “The 75 Pa.C.S. Act, and Compensation accord- relate to repealed 1722 are insofar every ingly majority applicable violates payments or other statutory construction it principle when under Workers’ expands repeal language include added.) Act.” (Emphasis pro- This repeal the Heart implication says nothing vision about Act. relevant to this Also discussion relevant every principle by the observation made Court construction, if properly ap- of statutory legislative connection with the intent any court in- plied, preclude would enacting which serves an im- under the Heart and serting *15 purpose. The observed portant Court the repeal provision. into this Kamppi, v. Walters following in Pa. (1988) analysis authority (em- A of relevant 975, careful 545 A.2d Cmwlth. Brown in the Court demonstrates in phasis original): of the treatment misinterpreted forced, victim who is subrogation pur- Lung Act benefits to turn over through subrogation, his result, and, Oliver the trial poses, as a source workmen’s funds correctly court need to over- perceived a tortfeasor may he has recovered from reiterate, in Brown. turn To Court for his up realizing nothing end non- that “Heart and ben- stated economic The elimination of losses. efits fall within the ‘benefits lieu thereof thus, subrogation, goal furthers of of 1720. language” payable’ providing complete to Id., recog- at 619. The Court innocent a motor vehicle victim of acci- liberally 1720 should be nized that Section dent. that on it interpreted and indicated its face context, therefore, any expansion In this of sought “potential include benefits which beyond the repeal spe- of Section 1720 may numerous to mention.” have been too language cific in Act erodes intend-

Id. Yet to be all the benefits included victims. protection ed of innocent legislature repealed the Brown case was decid- conclude, To only “insofar as section and Section never been years ed ten but has relied ago they compensation pay- relate to workers’ any subsequent this upon by deci- Court ments or other benefits Work- only again It in the sion. surfaced Third 25(b) ers’ Act.” Section Cole, in In re opinion ig- which Circuit 44. of the plain language repeal nored the statute, statutory that decision neverthe- although It is construc- well settled binding is not on this Court. It implied repeals less jurisprudence Rather, by the Court suggestion concurring it of the Contrary 3. was statement opinion, in Williams in the Court footnote principle that Heart settled existing principle stating of law. The was subrogation, subject are as was not may explain the basis for context have been clearly Words mean held in Fulmer. what objection subrogation, but claimant’s say, in Williams can- and the statement was not the claim- 5 reference footnote not now be contradicted. disputed point. interpretation ant's of same carry does clear that Brown Edwin KOLVA Wilson controlling case authori- or force of

weight expressed, the Court ty. For the reasons it Bromi inasmuch as should overrule first Pennsylvania, COMMONWEALTH decided; second, it should wrongly DEPARTMENT OF TRANSPORTA con- and Williams conclude that Fulmer TION, OF DRIVER LI BUREAU outcome; lastly it hold should trol the CENSING, Appellant. rights in that the has Pennsylvania. Commonwealth Court recovery pursuant Oliver’s Argued June 2009. 1722 of the MVFRL.

to Sections 1720 and July Decided absolutely right in its The trial court was conclusions, analysis and its order

therefore should be affirmed. Judge OPINION BY

CONCURRING

SIMPSON. thoughtful majority opin- in the

I concur Pittsburgh

ion which allows lien for Heart and

assert Act1 Oli- Casandra *16 emphasize I write separately

ver.

majority’s handling correct Ap- v.

Pittsburgh (Pa. (Williams),

peal Board 810 A.2d 760

Cmwlth.2002).

I opinion authored Court’s wrote, In a footnote I “Heart

Williams. subject benefits are not to sub-

rogation. Pennsylvania State

Police, 167 Pa.Cmwlth.

(1994).” purpose Id. at n. 5. The explain

this reference was to claimant’s

argument, judge not to its continued validi

ty. necessary The reference was not Williams,

resolution of hence the rele

gation to a refer footnote. Because this background

ence was intended rather as substance,

than I that it have agree should bearing in the outcome of the current

case. amended, commonly §§

1. The act referred to as the Heart 637-638. 28, 1935, the Act P.L. of June