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MERLE WALTERS AND PATRICIA WALTERS v. MARK W. KAMPPI ET AL. NATIONAL FUEL GAS SUPPLY CORPORATION (08/11/88)

decided: August 11, 1988.

MERLE WALTERS AND PATRICIA WALTERS, HIS WIFE
v.
MARK W. KAMPPI ET AL. NATIONAL FUEL GAS SUPPLY CORPORATION, APPELLANT. ANNA C. HILL, ADMINISTRATRIX OF THE ESTATE OF JOSEPH A. HILL, DECEASED, ANNA C. HILL, IN HER OWN RIGHT, AND ANNA C. HILL, AS PARENT AND NATURAL GUARDIAN OF JOANN L. HILL AND LUCILLE A. HILL, MINORS V. MARK W. KAMPPI ET AL. NATIONAL FUEL GAS SUPPLY CORPORATION, APPELLANT



Appeals from the Orders of the Court of Common Pleas of Erie County, in the case of Anna C. Hill, Administratrix of the Estate of Joseph A. Hill, deceased; Anna C. Hill, as parent and natural guardian of Joanne L. Hill and Lucille A. Hill, minors v. Mark W. Kamppi, Avonia Farms, Inc., Commonwealth of Pennsylvania, Department of Transportation and Winters & Flemming, Inc. v. Koch Asphalt Company, a division of Koch's Fuels, Inc., Koch's Fuels, Inc., a Delaware Corporation, Koch Industries, Inc., a Kansas Corporation, and Koch Materials Company, No. 4567-A-1986, and in the case of Merle Walters and Patricia Walters, his wife v. Mark W. Kamppi, Avonia Farms, Inc., Commonwealth of Pennsylvania, Department of Transportation, and Winters & Flemming, Inc. v. Koch Asphalt Company, a division of Koch's Fuels, Inc., Koch Fuels, Inc., a Delaware Corporation, Koch Industries, Inc., a Kansas Corporation, and Koch Materials Company, No. 123-A-1987.

COUNSEL

Mark E. Mioduszewski, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for appellant

Ted G. Miller, Gifford, Lay, Johnson & Ridge, for appellees, Merle Walters and Patricia Walters, his wife, and Anna C. Hill.

John M. Wolford, MacDonald, Illig, Jones & Britton, for appellees, Mark W. Kamppi and Avonia Farms, Inc.

Brian H. Baxter, Senior Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, Gregory R. Neuhauser, Senior Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for Appellee, Department of Transportation.

Judges MacPhail and Colins, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 118 Pa. Commw. Page 489]

Appellant National Fuel Gas Supply Corporation (NFG) appeals an order of the Erie County Court of Common Pleas which denied NFG's petition to intervene

[ 118 Pa. Commw. Page 490]

    in actions filed by Merle D. and Patricia Walters and Anna C. Hill in that court. For the reasons set forth below, we affirm the trial court's order.

The actions below arose from an August 26, 1985 motor vehicle accident which resulted in the death of Joseph Hill and serious injuries to Merle Walters. At the time of the collision, Mr. Hill was operating a truck owned by NFG in which Mr. Walters was a passenger. As stipulated by the parties, both were employees of NFG acting within the scope of their employment at the time of the accident.*fn1 The NFG truck was struck by a truck owned by Avonia Farms, Inc. and operated by Mark W. Kamppi.

As a result of the accident, NFG paid workmen's compensation benefits in the form of medical and wage loss benefits to Mr. Walters, and funeral expenses and death benefits on behalf of Mr. Hill.

Suits were commenced in the trial court by Mr. and Mrs. Walters and Mrs. Hill*fn2 on January 12, 1987 and November 25, 1986, respectively. The complaints alleged negligence on the part of Mr. Kamppi, Avonia Farms, the Pennsylvania Department of Transportation (DOT) and Winters and Flemming, Inc., a DOT subcontractor. NFG filed petitions to intervene in both actions as party-plaintiff or use-plaintiff seeking to establish a right of subrogation, reimbursement and/or set-off by reason of the workmen's compensation benefits paid against any sums payable to plaintiffs as a result of the suit. NFG also sought a declaration that the Pennsylvania Motor Vehicle Financial Responsibility Law (Financial Responsibility Law), 75 Pa. C.S. §§ 1701-1798, is in whole or in part unconstitutional.

[ 118 Pa. Commw. Page 491]

In an opinion and order filed September 3, 1987, the trial court, per Judge Jiuliante, denied NFG's petitions to intervene in both actions. Judge Jiuliante concluded that NFG was not entitled to subrogation, pursuant to Section 1720 of the Financial Responsibility Law, 75 Pa. C.S. § 1720, and that this section was not unconstitutional. NFG subsequently filed a petition for reconsideration which was granted on September 18, 1987. On November 9, 1987, Judge Jiuliante affirmed the September 3, 1987 opinion and order denied NFG's request for ...


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