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filed: September 27, 1985.


Appeal from the Order of the Court of Common Pleas, Civil Division, of Monroe County at No. 1716 Civil 1982.


David W. Knauer, Stroudsburg, for appellant.

Ronald J. Mishkin, Stroudsburg, for Maginley, appellees.

Paul A. Barrett, Scranton, for Elliott, Inc., appellees.

Wieand, Del Sole and Popovich, JJ. Wieand, J., files a concurring and dissenting opinion. Del Sole, J., files a concurring opinion.

Author: Popovich

[ 345 Pa. Super. Page 584]

This is an appeal from the order of the Court of Common Pleas of Monroe County denying Roadway Express' petition to intervene. We remand.

The facts reveal that Roadway Express' employee, Richard A. Maginley, sustained injuries when the vehicle he was operating collided with a vehicle driven by Frederick Poultney. As a result of the accident, Maginley received $20,000 in workmen's compensation.

Despite the workmen's compensation payment, on July 15, 1982, almost fifteen months after the accident, Maginley and his wife brought suit against Poultney and his employer, Robert J. Elliott, Inc., to recover for the damages he incurred. On May 23, 1983, Roadway Express petitioned to intervene in this third-party litigation. However, the trial court denied the requested intervention on the grounds that: 1) Roadway Express had no right of subrogation; 2) the petition was filed two weeks prior to the third-party cause of action being listed for trial; and 3) intervention would jeopardize a resolution of the third-party suit. This appeal followed.

Initially, we treat the appealability of the order in question, for "it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction." Marcus v. Diulus, 242 Pa. Super. 151, 157, 363 A.2d 1205, 1208 (1976) (Citation omitted).

Albeit, in general, an appeal from an order refusing a petition to intervene is considered interlocutory, our courts have recognized that in those instances where the practical consequence of the order is to deny the petitioner relief to which he is entitled and which he can secure in no other way, the order has been held to be appealable. Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa. Super. 279, 446 A.2d 614 (1982).

At bar, this translates into an observation that since the Workmen's Compensation Act (77 P.S. § 671) entitles an employer to "be subrogated to the right of the employe" to

[ 345 Pa. Super. Page 585]

    the extent of compensation it paid as a result of an injury caused by a third-party, the employer's failure to act timely in bringing a separate cause of action against the third-party will result in its inability to recoup monies paid to his employee for a compensable injury sustained at the hands of the third-party. In other words, unless Roadway Express' petition to intervene is granted, any separate suit against the third-party tortfeasor would be barred by the two-year statute of limitations covering personal injuries. 42 Pa.C.S.A. § 5524(2).

Therefore, given the facts here, the practical effect of the order denying intervention is to preclude the employer from securing relief to which it is entitled and which it cannot otherwise obtain. Accordingly, we hold the order to be appealable.

However, on the present record, we are unable to determine whether the trial court abused its discretion in denying Roadway Express' petition to intervene under the auspices of Pa.R.Civ.P. 2329. Thus, we need to remand. See Johnson v. Keystone Ins. Co., 299 Pa. Super. 187, 445 A.2d 517 (1982).

Although the trial court's denial of Roadway Express' petition to intervene is subject to being interpreted as "bottomed" on case law that subsequently was overruled (see discussion infra), we still have the power to affirm the denial on grounds other than those relied upon by the trial court. See McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 455 n. 7, 450 A.2d 991, 1000 n. 7 (1982). For instance, Roadway Express claims to have "justifiably believed" that its subrogation interest would be honored by the third-party tortfeasor. Yet, we are presented with no insight as to what such a "belief" was "bottomed upon". Even though a hearing on the petition to intervene was held, the record of what happened there, if transcribed, was not forwarded to this Court. Therefore, we believe we should remand for the securement of such testimony to determine what, if anything, occurred at that proceeding. And, if a review of the record reveals that Roadway Express

[ 345 Pa. Super. Page 586]

    proffered no justification for its delay in acting, it would be held to have waived such a claim. See Zubris v. Pennsylvania Assigned Claims Plan, 321 Pa. Super. 83, 467 A.2d 1139 (1983) (Concurring Opinion by POPOVICH, J.).

Further, we hasten to mention that nowhere is it written that "a valid right of subrogation" cannot be refused when presented in the form of an "intervention petition", regardless of the intervenor's unexplained delay in not acting sooner. Ergo, Roadway Express' unsubstantiated assertion of how it was led to believe its subrogation claim would be honored runs head-on into the undue delay criterion warranting the denial of its intervention petition. The trial court stated as much in its opinion to us, which, interestly enough upon ...

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