*1 Sojourner The instant case is distinguishable from that the trial judge was not required impose particular for the penalty charged crimes the Appellant plead which reason, For guilty. this I find the majority’s upon reliance Sojourner holding our as authority for its broad state- that, “Thus, ment there can be no constitutional bar in this jurisdiction to an increase in sentence after service has begun.”, 389), sentence at (Majority opinion a misin- terpretation holding.
I would find simply this case cannot any claim expectation in his finality original sentences they illegal because were subject to appeal by the 9781(a). Commonwealth under Pa.C.S.A. §
v. PHILADELPHIA ELECTRIC COMPANY and Corporation.
Allis-Chalmers Appeal of ALLIS-CHALMERS CORPORATION.
Supreme Pennsylvania. Court of
Argued Jan. 1988.
Decided Feb. 1989. *2 Wilson, appellant. for Pittsburgh, T. William Frock, for Brian Winfree. John for P.E.C.O. Gallagher, Square, J. Kennett William FLAHERTY, NIX, C.J., LARSEN, Before zappala jl McDermott, papadakos,
OPINION ZAPPALA, Justice. appeal petition allowance granted Appellant’s
We Court, Superior review order 520 A.2d affirming the order and judgment of the Court of Common Pleas of Chester which had County denied the Appellant’s Petition To Set Aside or. Strike Judgment Satisfaction of and to Judgment Mark to the Use (hereinafter Petition). of Allis-Chalmers The essence of the Appellant’s petition attacking is that it has an to subrogation absolute under 319 of the Work- § Act, men’s Compensation 671. Although P.S. we do § agree not with the procedure utilized protect right, agree we do its subrogation rights under the Act are absolute. litigation
Ova Winfree commenced filing of a complaint alleging that he injuries were the sustained result of negligence of the Philadelphia Electric Compa- (PECO). ny in turn joined Appellant, PECO Allis-Chal- mers as an Corp., additional defendant seeking contribution *3 for any damages that it may satisfy. have At the time of accident, Winfree, the Appellee, Ova was the Appellant. the Because of the sustained the injuries Appel- work, lee resulting was unable to in the payment of work- compensation men’s benefits to him in accordance with the Act. trial,
At the conclusion of the the found jury PECO to be solely damages $800,- liable and awarded in the amount of Winfree, $175,000 000 to the Appellee, wife, Ova to his delay damages $212,483.28. in the amount of After the motions, of post-trial denial judgment was entered on the appeal verdict and PECO filed an In Superior Court. 1984, January, Appellees PECO and the agreed to settle the $800,000. judgment for The Appellees had the judgment marked satisfied and PECO withdrew its appeal. Petition,
Appellant alleged in its that it was never notified settlement, satisfaction, of the the or the withdrawal of the until after appeal procedure the entire was completed. order to compensation paid, recover the workmen’s benefits Appellant then filed its Petition the setting with trial court requested forth its relief.
395 on procedure feel comment the compelled initially We In Epstein v. matter. by Appellant the this utilized Kramer, (1950), that a Pa. we noted A.2d A A Rule To Satisfaction Of Why For Show Cause Petition The Record is Be Stricken From Should Not Judgment relief, plaintiff must grant nature. To such equitable to record the satisfaction that he induced demonstrate was However, in Epstein we or mistake. fraud judgment that the concluding denial of the petition affirmed the assumpsit an action breach of remedy was appropriate demonstrating that evidence had been offered contract. No the fraudulently judg- induced to satisfy the was plaintiff Rather, the failed to honor the of record. defendant ment after the was judgment the agreement pay judgment on record. satisfied the Facility in Neustein v. Insurance Placement
Likewise,
Pa.,
(1979),
Superior
the
In the case does judice, sub satisfying fraudulently were induced into Appellees Instead, contends it was de Appellant the judgment. Thus, Appellees actions of the and PECO. frauded not on face of its would petition, *4 the received a sought Appellees to the relief since entitled pay to a settlement which agreed and PECO jury verdict Appel to The accept. have obviously Appellees agreed the fraud. any that PECO committed alleging lees are not now facts there is no the and record On the face of pled No the satisfaction. facts have been to strike reason to Appellees PECO induced showing fraudulently that Thus, by Ap utilized procedure satisfy judgment. inappropriate. pellant was
Our affirmance of the Appellant’s denial of petition not, however, does deny the Appellant’s subrogation rights as the may same still pursued be a through separate action against Appellees both the In pertinent part, PECO. as states follows: § compensable
Where the injury caused in whole or in part by the act or omission of a third party, the employer shall subrogated right to the of the employe, ... against third such party the extent of the compensa- payable tion under this article the employer; reason- attorney’s able fees proper and other in- disbursements obtaining curred in a or effecting recovery compro- prorated mise settlement shall be between employer his employe, personal representative, his estate or his dependents. The employer pay shall that proportion of the attorney’s fees and other proper disbursements that the amount of compensation paid or payable at the time or recovery settlement bears to the recovery total or settlement. Any recovery against such third person in the compensation excess of paid theretofore by the em- ployer paid shall be forthwith his employe, personal representative, his or dependents, estate his and shall be treated as an advance payment by the employer on ac- any count of compensation, (foot- future installments of omitted) note P.S. § 671. face,
When a statute is unambiguous on its its clear meaning ignored cannot be to reach a desired result. section, Pa.C.S. 1921. In the cited the statute clearly and § that, unambiguously states the employer “... shall be subrogated right the employee ... such party third to the extent of the compensation payable ...” legislature The could not have manifested clearly more intent subrogation rights of the are absolute. consistently We have held in past purpose provide of the Act was to an exclu- sive without the necessity benefits fault proving exchange abrogation common employee’s
397
remedies.
v.
Creek Indus.
negligence
law
Leflar
Gulf
(1986);
574,
Pa.
v.
2, 511
entered into a consent tortfeasors Prior to the judgment upon payment. and satisfied the settlement, Appellant-plaintiff, employee’s work- carrier, Appellee-defen- men’s had advised the compensation dant, tortfeasors, carrier for one of the of its insurance However, subrogation claim. never advised claim, or his nor did it inter- attorney action. the court did personal injury vene While so in recognize subrogation equitable remedy, as an it did application concept promissory the context Thus, if the had estoppel. compensation workmen’s carrier of its upon liability protection relied carrier’s justifiably rights action, the third party negligence then promissory estoppel applicable would be and the workmen’s compensa- tion carrier would be entitled to proceed recoup paid. However, it benefits since the compensa- workmen’s *6 did prove any tion carrier not of negligence evidence toas the cause of the employee’s injuries, it was foreclosed from being subrogee reimbursed aas under Broderick v. Great Co., Lakes 152 Casualty Pa.Super. (1943). 33 653 A.2d addition, In upon both lower courts relied City Meehan v. Philadelphia, 659, 136 (1957). 184 A.2d In of Meehan, plaintiff the and City Philadelphia the of a filed joint against action the party third tortfeasor for damages of arising plaintiff out the the as injuries received the result of a motor vehicle accident. Both then the settled cause of action against settlement, the tortfeasor. Prior the to the City had the paid plaintiff benefits under Act of the June 28, 1935, P.L. the P.S. and Workmen’s Com § Act. pensation The City then tried to recover a for credit any compensation workmen’s to paid benefits or be paid. claim, In rejecting the the City’s equitable court relied upon principles and held that the had been led to believe that his with City settlement the all subrogation resolved Therefore, claims the City. precluded the was from City pursuing any further claims Meehan. contentions,
Notwithstanding Appellees’ the cited cases are as just supportive Appellant’s of position as Appellees’. In both Traveler’s Insurance Company Meehan, the court looked to interplay between claimant and his determine employer to whether estoppel appropriate in a supporting subrogation was denial of case, rights. In each did estoppel apply obtaining not to the benefits, only enforcing subrogation rights. case, In the sub the lower judice, agreed courts with the Appellees’ argument Appellant that the should denied its be it subrogation rights cooperate because did not in fully fact, obtaining negligence judgment. the Appellees argue Appellant acted in direct controvention of their appears support interests. There some Appellees’ must However, Appellant’s actions in the record. argument they Appellees in arose. the context which be viewed Appellant joined by of the fact that was seem to lose track in negligence of action defendant a cause original Thus, Ap- upon contribution or indemnification. based It therefore was adversary. did in fact become an pellant it pursue the actions not unreasonable for the did. espoused Travel- upon equitable principles
Reliance in that misplaced and Meehan Company er’s Insurance of its pursuit actions were in furtherance Appellant’s this argu- Adopting Appellees’ itself from liability. exonerate position in the placing ment dubious would be running the risk of with its cooperating its own solely vigorously pursuing found liable or being rights. We will not losing exoneration and *7 therefore hold that employers to this choice. We subject subrogation of is abso- under these circumstances lute. is affirmed without Superior
The Order of Court pursue subrogation claim prejudice Appellant to the and/or PECO.1 against Appellees JJ., PAPADAKOS, concurring filed and LARSEN and dissenting opinions.
LARSEN, Justice, concurring dissenting. and in affirming I the order of the majority concur with Court, I the memorandum adopt opinion also Superior I attached hereto. opinion of the Court which have Superior disposition of this portion majority’s I dissent to that that the order of Superior states majority case where prejudice to the Court is affirmed “without paid by Appellant dispute much was seems to be in as to how 1. It Winfree, compensation Appellee, in workmen’s benefits. Ova unnecessary disposition to calculate in the our it is for us Because of first instance what benefits were paid given or what credit should be attorney’s determination can be made at the time fees. Such subrogation rights against Appellees, Appellant proceeds to enforce its PECO or both. pursue its claim the Appellees and/or PECO.” at 399. See Maj. op. my opinion concurring 101, Heckendorn v. Corp., Consolidated Rail 502 Pa. (1983), A.2d 609 I “subrogation rights where stated that are always subject equitable principles.” Id., 109, 502 Pa. at at A.2d 613.
APPENDIX Superior Court of Pennsylvania No. 02847 Philadelphia 1985 Appeal 23, from the Order entered October 1985 in the of
Court Common Pleas Chester County, Civil Term, Division No. 144 October 1974. CIRILLO, Before: President Judge, WICKERSHAM KELLY, JJ. MEMORANDUM: appeal 23,
This arises from an Order entered October by the Honorable John E. appellant’s Stively, denying set or petition to aside strike the satisfaction entered court order on by January 1984. We reiterate of this action as history summarized the court below: The captioned litigation on was initiated December 1974 and arose out a 1973 accident that occurred on premises defendant Electric Philadelphia Company during an overhaul of Company’s equipment per- formed additional defendant [appellant Allis- herein] *8 (hereinafter Corp. Chalmers referred to as PECO and Allis-Chalmers, respectively). As a result of the acci- dent, Allis-Chalmers, of an Ova Win- herein], free [appellee sustained damage severe his left hip. The subsequent proceedings may be summarized as follows: wife, Winfree,
Winfree filed suit with his Lana then joined PECO and PECO as an Allis-Chalmers addi- trial, tionál defendant.1 At the conclusion of the 1982 found defendant jury solely PECO liable and determined $800,000.00 in the amounts of damages plaintiff, Mr. Winfree, $175,000.00 for Mrs. Winfree. The addition $1,187,483.28. of delay damages brought total motions, Upon resolution of trial en- post plaintiffs judgment tered on the verdict and filed PECO Notice Appeal Pennsylvania Superior January Court. the plaintiffs agreed PECO and to a settlement in $800,000.00 the form of one payment by defendant PECO to the Winfrees. Upon filing by plain- an Order satisfied, tiffs that the judgment be marked PECO with- its from the appeal Superior drew Court. Allis-Chalmers, through its in- compensation workmen’s surance carrier payments made certain to Mr. Winfree representing compensation workmen’s under the benefits Act, Pennsylvania Compensation Workmen’s 77 P.S. § Through et seq. petition to set aside or strike satis- faction of and to mark judgment use of petitioner, Allis-Chalmers now contends that it should be subrogated out of the judgment representing the settle- ment plaintiffs between the and PECO.
(Trial 1-2). Ct.Op. at
The lower court declined to grant petitioner Allis-Chal- mers requested relief because: “The relief sought by petitioner is not within the power of this grant.” court to Petitioner filed timely appeal to this Court. For the reasons herein, enunciated we affirm the decision of the lower court.
Although codified the Pennsylvania Workmen’s Com- Act, pensation 77 P.S. 1 et an seq., § to subrogation to the extent of the compensation payable to an employee whose were caused of a injuries fault third party, equitable origin. 319 of the Act Section rights: delineates an employer’s 1. Several other originally defendants were named but were later dropped from the action.
402
SUBROGATION OF EMPLOYER
671. Subrogation of
of
employer
rights
employee
§
persons;
third
of
subrogation
employer or insurer
paid prior
amount
to award
Where the
compensable injury is caused whole or in
part
the act or
by
omission of a third
party,
employer
shall be subrogated
right
of the employe, his
personal representative, his estate or his dependents,
against such third party to the extent of the compensa-
tion payable under this article
employer____ Any
recovery against such third
person
excess of the com-
pensation theretofore
paid by
employer shall
paid
be
employe,
forthwith to the
his personal representative, his
estate or
dependents,
his
and shall be treated as an
payment
advance
employer on account of any
future
of compensation.
installments
added). (Sections omitted).
(Emphasis
Despite
emphatic mandatory
statute,
of
language
that “the
shall
subrogated
be
to the right of the
employee,” equitable principles
govern
continue to
Pennsyl-
law, and,
vania
application
therefore,
courts’
of this
excep-
tions to the
nature of the
mandatory
statute have been
recognized.
Corporation
See Olin
v.
Compen-
Workmen’s
Board,
603,
sation
14
Appeal
Pa.Cmwlth.
Ordinarily, an
employer’s right
subrogated
to an
from a third
employee’s recovery
party would exist regard-
of the fact
less
recovered
by way
Meehan,
180;
settlement rather than verdict.
136 A.2d at
Co.,
(1927).
Pa.
Smith v. Yellow Cab
In the instant did not inform appellees appellant *10 the settlement agreement reached with PECO. None- theless that fact is not dispositive. alone Supreme times many Court said: ‘We have said
[O]ur that is matter of pure equity, a and never allowed where it would be to do so. Conse inequitable as ‘he quently, equity equity,’ who would have must do he must neither do nor leave anything undone which results in harm to those may who are or be affected subrogation which claims.’ he Co., 89, Smith v. Yellow at A. Cab 288 Pa. at 860 (1927). In whether determining subrogor “did equity,” noted, the trial court and our of the review record confirms the following facts:
Allis-Chalmers in a engaged litigation designed strategy to prevent plaintiffs from successfully resolving their trial, claim. Prior to petitioner undertook discovery where none had been commenced or PECO; petitioners defendant filed motions for sanctions plaintiffs delay filing petition- for answers to ers’ interrogatories; arranged petitioner taking for the deposition orthopedist of an in Tennessee refused pay the cost of of plaintiffs’ counsel; petition- attendance er arranged for deposition the travel and of another Allis-Chalmers Mr. employee, supervisor, Winfree’s who testified to the contributory negligence of Mr. Winfree. At petitioner trial stated it intended to demonstrate ‘the accident plaintiff’s occurred because of own (trial transcript, misconduct.’ trial: 1—June June transcript, 23); petitioner hereinafter p. cross-exam- ined accident, Mr. Winfree about instant re- turning questions consistently involving mis-step, slip- ping falling on a surface purportedly known to the plaintiff to grease 150-182); covered. (Transcript p. petitioner cross-examined several whom witnesses of de- questions, fendant PECO intended to ask no (transcript, 444-447; 501-509; 630-641). proceed- p. respect With on ings points sought for charge by plaintiffs, petitioner frequently objected, either with defendant conjunction through PECO’s or objections independently objec- voiced 936-954). Furthermore, (Transcript p. petitioner tions. on requested points charge plaintiffs contributory for damages represent- and their effort to recover negligence impairment earning power. of Mr. ing Winfree’s position plaintiffs Allis-Chalmers’ relative to was clearly stated its summation to the Petitioner jury. following points raised the final consideration: accident, proceeding moments Mr. Winfree “took a and, fell, chance” in so he doing, simply “slipped” and 990-991). causing p. his The injuries. (Transcript arm a fellow testimony only eyewitness was (Transcript p. union of Mr. and fellow member Winfree. *11 992-993). Finally, petitioner plaintiff’s characterized the- “absurd”, against PECO as ory liability defendant unreasonable, 1002). (transcript “ridiculous” p. and 7-9). (Trial Ct.Op. at
Weighing against all of these actions are Allis-Chalmers’ 1) arguments that: it attempt did to assist Winfree case; developing 2) his and was obligated Allis-Chalmers to present a vigorous due defense to an indemnity contract had they contention, with PECO. As to the first compa- developed ny separate files for handling Winfree’s case and (R.R. 192a, its 241a). own defense. However, the record clearly reveals that while Allis-Chalmers requested and Winfree’s agreed counsel that Allis-Chalmers would be subrogated to any against PECO, recovery Winfree it later forbade having Winfree’s counsel from contact with (R.R. 253a-254a, Allis-Chalmers’ insurance 244a). carrier. Winfree then informed Allis-Chalmers that he could no longer maintain any subrogation interest on Allis-Chal- mer’s behalf. Allis-Chalmers blames lack of communica- tions departments between its own appel- the difficulties 6, 7). lee faced. at (Appellant’s brief Allis-Chalmers that was argues compelled also it an defense once as a present joined affirmative defendant to the an due existence of clause the construc- indemnity Thus, contract PECO. tion with Allis-Chalmers’ defense in “(t)hat Winfree’s action PECO was two-fold: Win- negligence not due injuries free’s were to the of either itself, PECO or that it had no any event duty 23). indemnity.” (Appellant’s brief at contends alone defending indemnity grounds on the would have an inadequate been defense.2
Indeed, fully justifies the record Allis-Chalmers’ judg- ment that depend presentation it could not PECO’s upon of its defense its decision aggressively present its Otherwise, original own. would preclude what defen- from capitulating dant to the ultimate if prejudice employer, employer precluded from offering evidence as to but anything indemnity. 23). However, (Appellant’s brief at the trial court’s ruling does not limit employer’s an defenses to issues indemnity alone; it out merely points consequences an affirmative presenting contributory negli- defense of gence may subrogation include loss when an concurrently cooperate fails to fully employee’s with preclude case. We do not from employers presenting any clear, long viable defense as as there unambig- remains cooperate employee’s uous commitment to with an legit- requests imate for assistance in developing employee’s fails, If case. that commitment wavers or as it has in this case, then the equitable remedy may *12 denied. we affirm the court Consequently, trial and find no arguments. merit to appellant’s Appellant directs our attention to v. Simpson Curtis Chevrolet, that court held that an supra, employer wherein entitled to acts despite was certain that made employer arguably employee’s case more difficult. jury ultimately
2. We note the found that Allis-Chalmers was not liable on their indemnity contract with PECO. Here there is no that charge [employer’s] counsel failed to assist plaintiffs during counsel trial or deliberately any withheld prior to trial. At most information has listed a plaintiff series incidents which might have been managed in a that way would have made trial preparation easier. In view of the unequivocal statutory language, interpretations section, of this public enunciated, and the policy plaintiffs reasons asser- tions are insufficient. There was no showing bad no faith, dereliction and no duty, deliberate failure help. Equally important, there was no showing of any prejudice plaintiff.
Curtis, added). at 1065. The facts of Curtis (Emphasis inapposite are to our case in that the record herein reflects clear, there was not a unambiguous commitment fully cooperate employee’s legitimate with the request; this can only be considered as a help.” “deliberate failure to Allis-Chalmers’ half-hearted effort to aid appellee’s person- injury al claim submerged PECO was under the aggressive, affirmative defense of contributory negligence which prepared, Allis-Chalmers and eventually presented at Therefore, trial. agree we with the trial court Inc., facts of Arendas v. Rich & Company F.Supp. 957 (W.D.Pa.1963), are more to the point. case,
In the Arendas plaintiff’s decedent was allegedly killed reason of defendant’s provide failure to a safety suit, device. the resulting decedent’s was employer joined as a third defendant. The party jury rendered a verdict for both defendants and the matter was settled between the and the defendant while a motion for being a new trial was considered. The lien employer’s on the proceeds during settlement was stricken because employer counsel had not with trial cooperated for counsel the plaintiff and had resisted cer- making tain records available. Moreover, was content with the verdict in favor defendant. Ana- factors, these lyzing the Court concluded there should no in the subrogation rights proceeds. settlement
407 Curtis added). at (Emphasis 1065. Allis-Chalmers’ coun- counsel, not cooperate sel did with and Winfree’s rebuffed (R.R. 262a). requests assistance. at court, us, The lower correctly case before declined Curtis, distinguish to Arendas from perceived that cases, read in suggest adopt a test which conjunction, we and enunciate where employer/carrier deliberately as: an aid, obstructs, fails or to or prejudices employee/plain- tiff, has its to right subrogation. waived herein, we face an issue Although impression of first we both rely upon similarly, federal cases have held see which Curtis, Arendas, supra, on espoused by the wisdom state, our sister Delaware. Co., v.
In Baio Commercial Union Insurance A.2d 410 that, (1979), if Supreme Delaware Court held a conflict interest exists for employer/carrier seeking an to its its protect rights, governed conduct is by equitable principles; where the to employer/carrier equity” fails “do to regard employee, its employer/carrier waives its Baio, right subrogation case, to relief. as in the instant not failed employer/carrier only to assist the employee, Baio, employee any recovery. sought but deny at 507.
Thus we do not hesitate affirm trial deci- court’s sion that Allis-Chalmers has waived in this case.
As
final procedural point,
a
we note that the trial court
ruled
petition
that Allis-Chalmers’
to strike or set
aside
of judgment
satisfaction
and to mark judgment to the use
of petitioner was “not within the
power
this Court to
(Trial
grant.”
2).
Ct.Op. at
The Court
its reasoning
based
on the
“the
premise
judgment,
once
components
a
aside,
or
stricken
set
do not remain
reappor-
available for
request
(Trial
at
tionment
of a petitioning party.”
3).
Ct.Op.
stricken,
at
It is true that
judgment
when a
is
the original judgment
destroyed;
is
it is as
no
though
v.
Ca-
judgment had
been
Malicia
Proietta
ever
entered.
Inc.,
& Cocktail
tering
Lounge,
(1979).
A.2d 751
However, of judgment
satisfaction
is
different;
the motion to strike a
satisfaction of
addressed to the Court’s equitable discretion. Epstein v.
*14
Kramer,
589,
365
(1950);
Pa.
We find Allis-Chalmers failed to any appropri demonstrate ground ate for relief. affirm Accordingly, we the order of the lower court.
PAPADAKOS, Justice, concurring dissenting. I concur with the majority affirming the order of the Superior Court I dissent but from the balance of the opinion full on commencing paragraph page with the first (opinion) continuing to the end. The discussion of Appellant is, whether has an absolute view, in my irrelevant to the issue before us.
As the majority states: granted Appellant’s petition
We of appeal allowance the order of Superior affirming review Court order and Court of Common Pleas of County Chester which had denied the Appellant’s Petition or Judgment Set Aside Strike Satisfaction of and to Judgment (hereinafter Mark ofUse Allis-Chalmers Petitioner), 394) (op.
The issue us is only prop- before whether Common Pleas erly Appellant’s denied Petition. The majority quickly has pointing resolved this issue out that the correctly “proce- dure utilized to protect right” 394) (op. was incorrect. “On the face of the judgment and record satisfaction____ facts there is no reason to strike the Thus, the procedure utilized by Appellant was inappropriate.” 395). (op.
Having properly disposed of the sole issue us, before I believe it is inappropriate for the majority to discuss subro- gation rights and methods of enforcing same. Accordingly, I dissent from the inclusion of this material as being pure dicta.
Common County. Pleas *15 Supreme Pennsylvania. Court of
Argued Oct. 1988.
Decided Feb. 1989.
See also