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WHIRLEY INDUSTRIES v. LEATRICE G. SEGEL AND HARRY C. SEGEL (07/01/83)

filed: July 1, 1983.

WHIRLEY INDUSTRIES, INC., APPELLANT,
v.
LEATRICE G. SEGEL AND HARRY C. SEGEL, HER HUSBAND, AND SEGEL & SON, INC., JOINTLY AND INDIVIDUALLY



No. 183 PITTSBURGH, 1981, Appeal from the Order of January 13, 1981 In the Court of Common Pleas of Warren County, Civil Action at No. 3550F1979.

COUNSEL

David W. Swanson, Warren, for appellant.

Will J. Schaaf, Erie, for appellees.

Joseph T. Messina, Erie, for participating party.

Beck, Montemuro and Popovich, JJ. Montemuro and Popovich, JJ., concur in the result.

Author: Per Curiam

[ 316 Pa. Super. Page 77]

In this case of first impression, appellant Whirley Industries, Inc. seeks to recover the increased costs of Workers' Compensation insurance premiums resulting from benefits paid by Whirley's insurer to Whirley's employee, to compensate the employee for injuries sustained due to negligence of the third party tortfeasor. The lower court sustained a demurrer by appellee Leatrice G. Segal, the party whose negligence caused the injuries, and we affirm.

The facts, agreed to by the parties, concern a motor vehicle accident in which William W. Stockdill, Whirley's employee, was injured. Stockdill, in the course of his employment, drove Whirley's truck to the United States Post Office in Warren, Pennsylvania. After completing his employer's business at the Post Office, Stockdill returned to his parked vehicle and passed in front of it. At that time, appellee Segal was operating a car directly in the rear of the Whirley vehicle. She collided with the parked truck, forcing it onto Stockdill, causing him severe bodily injuries. The injuries suffered by Stockdill were directly and proximately caused by the negligence of driver Segal. All claims of Stockdill against Segal have been satisfied and a complete release has been executed by Stockdill in favor of Segal and the other defendants. As a result of his injuries, Stockdill was unable to work, and he received Workers'

[ 316 Pa. Super. Page 78]

Compensation benefits provided by the Pennsylvania Manufacturers Association, the insurance carrier of Whirley. The carrier thereupon increased the premiums charged to Whirley by $22,451, and Whirley began an action in trespass to recover this sum directly from Segal.

Prior to argument on appeal, Segal filed a Motion for Dismissal of Appeal based on Whirley's failure to comply with Pa.R.C.P. 1038(d):

(d) Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a non-suit may be filed.

A per curiam order denied the Motion without prejudice to the parties' rights to submit arguments on the issue of waiver in their appellate briefs. Although neither party has referred to Rule 1038(d) in the question now presented to this Court, we believe it ...


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