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Pennsylvania Uninsured Emplr. Guar. Fund v. Workers' Comp. Appeal Bd. (Dudkiewicz)

Commonwealth Court of Pennsylvania

April 7, 2014

Pennsylvania Uninsured Employers Guaranty Fund, Petitioner
Workers' Compensation Appeal Board (Dudkiewicz, deceased, Builders Prime Window and TH Properties), Respondents

Submitted January 31, 2014

Page 331

Appealed from No. A12-1430. State Agency: Workers' Compensation Appeal Board.

Peter J. Weber, Philadelphia, for petitioner.

Elizabeth H. Marcon, Center Valley, for respondent, TH Properties.

Karyn Dobroskey Rienzi, Philadelphia, for respondent, Builders Prime Window.



Page 332


The Pennsylvania Uninsured Employers Guaranty Fund (UEGF)[1] petitions for review of the August 12, 2013 order of the Workers' Compensation Board of Review (Board), which, in relevant part, affirmed the decision and order of a workers' compensation judge (WCJ) dismissing the joinder petitions filed by UEGF against Builders Prime Window (Builders Prime) and TH Properties (THP). We affirm.

Dominic Dudkiewicz (Claimant) filed a claim petition against Michael Rossini Construction (Rossini Construction) and UEGF, asserting that on October 9, 2009, while employed by Rossini Construction as a laborer, he fell from a second-story roof and sustained numerous injuries. (Reproduced Record (R.R.) at 3a-4a.) UEGF filed an answer denying the material allegations in the claim petition and specifically denying the existence of an employment relationship between Claimant and Rossini Construction. (R.R. at 5a-7a.)

At the first hearing, on February 9, 2010, the parties requested bifurcation of the employment relationship issue. The WCJ heard Claimant's testimony as to the entire case and then directed the parties to proceed with their respective cases on the merits. The WCJ stated that he did not want the case to drag out given that Claimant was homeless, (R.R. at 70a), and, throughout the proceedings, the WCJ stressed the importance of adhering to deadlines. The WCJ informed the parties that he was relisting the matter for March 30, 2010, in order to receive defense testimony and complete evidence on the employment relationship issue and that all evidence had to be submitted by October 1, 2010.

At the March 30, 2010 hearing, the defense did not present evidence concerning the employment relationship as expected,[2] and it was learned that attorney Vincent Cirillo had not entered an appearance on behalf of Michael Rossini (Rossini), Claimant's alleged Employer.[3] The WCJ continued the case in order to allow Rossini an opportunity to secure counsel and extended the deadline to October 15, 2010. (R.R. at 113a-26a.)

Page 333

A hearing scheduled for April 29, 2010, was postponed by the WCJ, and a hearing scheduled for May 18, 2010, was cancelled by Claimant's counsel. Rossini testified before the WCJ at a hearing on May 20, 2010. Rossini explained that he worked as a subcontractor for Builders Prime and that THP was the owner of the construction site. The WCJ again emphasized the need to conclude the case expeditiously. Following the testimony at that hearing, UEGF's counsel stated that UEGF planned to join State Workers' Insurance Fund and Builders Prime. The WCJ responded that UEGF should do so promptly, indicating that he would notify UEGF of his receipt of the joinder petition and stating that he would be issuing a decision on the employment relationship that " could nullify the Joinder." (R.R. at 162a.)

On May 27, 2010, UEGF filed a joinder petition naming Builders Prime as an additional employer. (R.R. at 8a-9a.) No reason for the request was provided in the petition. Builders Prime filed a motion to strike the joinder petition as untimely and insufficient to state a case against Builders Prime. On September 3, 2010, UEGF filed a second joinder petition naming THP as an additional employer, alleging that THP was the general contractor at the construction site where the alleged work injury occurred. (R.R. at 12a-13a.)

On September 28, 2010, the WCJ issued a decision and interlocutory order dismissing both joinder petitions as untimely and finding, alternatively, that the petition to join Builders Prime was not in compliance with applicable regulations.[4] (R.R. at 15a-18a.) The WCJ noted that Claimant was questioned about his knowledge of Builders Prime at the February 9, 2010 hearing and that UEGF's subsequent request for a subpoena of Builders Prime's records was granted on February 25, 2010. The WCJ determined that, because UEGF did ...

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