Appeal from Order of the Court of Common Pleas, Civil Division, of Chester County, No. 86-07430.
William F. Thomson, Jr., Morrisville, for appellant.
C. Richard Morton, West Chester, for appellee Wallace.
Wieand, McEwen and Melinson, JJ. McEwen, J., files a dissenting opinion.
[ 382 Pa. Super. Page 244]
The issue in this appeal concerns the right of a workmen's compensation insurance carrier, who paid benefits in accordance with the Workmen's Compensation Law of Delaware, to intervene in an employee's third party tort action in Pennsylvania. The trial court held that the carrier had no right of subrogation, even though such a right was expressly granted by Delaware law, and denied the carrier's petition to intervene. For the reasons hereinafter set forth, we reverse.
Jacob Van Den Heuval, a resident of Maryland, was employed by Breeding & Day, Inc., a Delaware corporation having offices in Wilmington, Delaware. On October 26, 1984, while driving his employer's vehicle in the course of his employment, Van Den Heuval was involved in a collision with a vehicle being operated by Theodore H. Wallace in Chester County, Pennsylvania. Because of serious and disabling injuries sustained in the accident, Van Den Heuval was paid workmen's compensation benefits by his employer's
[ 382 Pa. Super. Page 245]
workmen's compensation insurance carrier, Rockwood Insurance Company (Rockwood) in accordance with the Workmen's Compensation Law of Delaware.*fn1
Van Den Heuval subsequently commenced a tort action against the driver of the other vehicle in Chester County, Pennsylvania. Rockwood filed a petition to intervene in this action for the purpose of protecting the right of subrogation which was guaranteed by statute in Delaware. The trial court denied the petition. It held that, pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1720, there was no right of subrogation for workmen's compensation benefits paid as a result of injuries sustained in a vehicular accident. This appeal followed.
Although an order denying a petition to intervene is generally deemed interlocutory, where the practical effect of such an order is the denial of relief to which an intervenor is entitled and which he can obtain in no other way, the order is appealable. See: Maginley v. Robert J. Elliott, Inc., 345 Pa. Super. 582, 498 A.2d 977 (1985); Boise Cascade Corp. v. East Stroudsburg Savings Association, 300 Pa. Super. 279, 446 A.2d 614 (1982).
This is such a case. For reasons which we will discuss, Rockwood is entitled to be subrogated in Van Den Heuval's third party action to the extent of workmen's compensation benefits which it paid to the employee of its insured. It is unrealistic to suggest that Rockwood's interest can be protected by a subsequent action against Van Den Heuval. If the third party action is settled without notice to Rockwood, its subrogation claim is at the mercy of the employee who, having received payment, can dispose of the settlement proceeds as he chooses. The order of the trial court which denied ...