Dep't of Labor & Indus., Uninsured Employers Guar. Fund v. Workers' Comp. Appeal Bd.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Labor & Industry, :
Uninsured Employers Guaranty Fund, :
Petitioner :
:
v. : No. 445 C.D. 2015
: Argued: March 7, 2016
Workers’ Compensation Appeal :
Board (Gerretz, Reliable Wagon :
and Auto Body, Inc., and Somerset :
Casualty Insurance Company), :
Respondents :

BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE BROBSON FILED: June 14, 2016

Petitioner Department of Labor & Industry, Uninsured Employers
Guaranty Fund (Fund), petitions for review of an order of the Workers’
Compensation Appeal Board (Board). The Board denied the Fund’s appeal of a
Workers’ Compensation Judge (WCJ) decision. The WCJ’s decision
(1) confirmed an earlier order granting a motion to dismiss the Fund’s petition for
joinder of a purported insurer, Somerset Casualty Insurance (Somerset);1 and

1
Although the WCJ purported to grant a motion to dismiss filed by Somerset and deny
the Fund’s joinder petition, it appears that Somerset did not actually file a motion to dismiss.
Instead, it appears that Somerset filed an answer to the Fund’s joinder petition, denying the
allegations and alleging that it had ceased providing workers’ compensation coverage to Henry
Gerretz’s employer prior to his injury. (WCJ’s decision, dated October 30, 2013, Finding of Fact
(F.F.) no. 3.) Pursuant to 34 Pa. Code § 131.36(e), an answer to a joinder petition may include a
motion to strike. Also, a WCJ may strike a joinder petition by issuing an order granting the
motion to strike. 34 Pa. Code § 131.36(i),(j). Thus, although the WCJ granted what it referred to
(Footnote continued on next page…)
(2) granted a claim petition filed by Henry Gerretz (Claimant) against the Fund and
his purported uninsured employer, Reliable Wagon & Auto Body, Inc. (Reliable).
We vacate the Board’s order and remand the matter for further proceedings.
On August 11, 2010, Claimant filed a claim petition against Reliable,
alleging that he sustained a work-related injury when he fell from a ladder on
July 16, 2010, and that, as a result of the injury, he was totally disabled. On
September 15, 2010, Claimant filed a claim petition against the Fund, naming
Reliable as an uninsured employer. The Fund responded to the claim petition, and,
on September 27, 2010, the Fund filed a joinder petition, seeking to add Somerset
as a purported insurer of Reliable at the time of Claimant’s injury. Somerset filed
a motion to dismiss the Fund’s joinder petition.
On April 2, 2012, the WCJ issued an order captioned as
“interim/interlocutory,” in which the WCJ concluded that Somerset did not provide
workers’ compensation to Reliable on the date of Claimant’s injury, and, therefore,
the WCJ granted the motion filed by Somerset to dismiss the Fund’s joinder
petition. As noted above, the face of the WCJ’s decision describes the decision as
being “interim/interlocutory” and specifically provides on the face of the decision
cover letter that “[t]his Interim/Interlocutory Order is not subject to appeal.”
Moreover, the order page of the decision refers to the order as “Interlocutory,” and
the “Important Notice” at the bottom of the order page provides:

(continued…)

as Somerset’s motion to dismiss and denied the joinder petition, it appears that it actually granted
what is more appropriately referred to as a “motion to strike” a joinder petition. See 34 Pa. Code
§ 131.36. Regardless of the vernacular used, the end result was that Somerset was not joined as
an additional defendant in the workers’ compensation proceeding.

2
 This Order does not constitute a final disposition of
Claimant’s petition but is only a determination of the
motion to dismiss the joinder petition. These
interlocutory findings of fact and conclusions of law will
be incorporated into the final decision for purposes of
potential appeal of the matters decided herein.

Additionally, in capital lettering that is bolded and underlined, the WCJ provided
at the bottom of the page that “THIS ORDER IS NOT SUBJECT TO
APPEAL.”
The Fund did not file an appeal from that order. Ultimately, the WCJ
issued a decision on the merits of Claimant’s claim petitions against Reliable and
the Fund, granting both and specifically re-affirming the WCJ’s earlier decision
regarding the Fund’s joinder petition. The first page of this decision describes
itself as a final order and, unlike the interim decision, informs the litigants that if
they do not agree with the decision, they must file an appeal within twenty days.
The Fund filed an appeal with the Board, challenging the WCJ’s determination that
Somerset had cancelled its insurance policy for Reliable and was entitled to be
dismissed from the matter.
The Board concluded that, despite the language the WCJ used to
describe her initial order as interlocutory, that earlier order was a final appealable
order, and, consequently, the Fund should have appealed that order. The Board
further concluded that the Fund’s appeal of the WCJ’s order granting Somerset’s
motion to dismiss the joinder petition was untimely. The Board noted that if a
joinder petition is granted, “the original petition is deemed amended to assert a
claim [by the claimant] against an additional defendant.” (Reproduced Record
(R.R.) at 79a.) Citing this Court’s decision in 3D Trucking Company v. Workers’
Compensation Appeal Board (Fine), 921 A.2d 1281 (Pa. Cmwlth. 2007), the Board
concluded that the regulations applicable to workers’ compensation proceedings do
3
“not require consolidation of a joinder petition with other pending petitions.” (Id.)
Based upon the procedurally distinct postures of the joinder petition and the claim
petitions, the Board concluded that the Fund was required to appeal the WCJ’s
initial decision.
The Board, citing Knish v. Workmen’s Compensation Appeal Board
(Jerome Enterprises), 536 A.2d 856 (Pa. Cmwlth.), appeal quashed, 553 A.2d 971
(Pa. 1988), considered the characteristics of a final order, opining that “[a] final
order is one which ends litigation, disposes of the entire case, puts a litigant out of
court or precludes a party from pressing the merits of his claim.” (Board’s
decision at 3.) The Board interpreted our decision in 3D Trucking as holding that
“an order granting a joinder petition [is] not an interlocutory order because it
resolve[s] all issues raised by the joinder petition.” (Id.) The Board observed that
the WCJ never consolidated the joinder petition with the pending claim petitions
and that the WCJ’s April 2012 order granting Somerset’s motion to dismiss the
joinder petition “ended the litigation against Somerset, resolved all issues raised by
the joinder petition, and disposed of the entire case against Somerset. It was
therefore a final order.” (Id.)
In a footnote, the Board noted that, in contrast to the facts in 3D
Trucking where the WCJ’s joinder order was labeled by that WCJ as a final order,
the fact that the WCJ in this case described the order as interlocutory and not
subject to appeal did not matter. Rather, the Board reasoned that the WCJ “clearly
intended [the order] to be a final order with regard to Somerset’s liability to
Claimant.” (Id. n.2.) Thus, the Board concluded that the Fund’s attempt to
challenge the earlier joinder order was untimely under Section 423(a) of the
Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S.

4
§ 853, which requires parties to appeal decisions of a WCJ within twenty days after
notice of a dismissal.
The Fund petitioned this Court for review,2 raising the primary issue
that the Board erred in dismissing the Fund’s appeal based on timeliness. 3
Although the Fund couches its argument largely in terms of whether the Board
erred in concluding that the WCJ’s initial order denying joinder was a final order
because, the Fund contends, such orders are interlocutory by nature, the Fund also
focuses on the language of the WCJ’s decision and order, which clearly provides
that the decision was interlocutory and not subject to appeal.
We begin our analysis with a review of the Board’s conclusion that
the WCJ’s April 2, 2012 decision was a final order, and, therefore, the Fund’s
appeal is untimely. The Bureau of Workers’ Compensation’s joinder regulation
provides, in pertinent part, as follows:
(a) A party desiring to join another defendant to assert a
claim relevant to the pending petition may do so as a
matter of right by filing a petition for joinder.
...
(e) An answer to a petition for joinder shall be filed in
accordance with section 416 of the act (77 P.S. § 821) . . .
and may include a motion to strike.
...

2
Our review is limited to considering whether necessary factual findings are supported
by substantial evidence and whether an error of law was committed. 2 Pa. C.S. § 704.
3
The Fund also raises issues relating to the merits of its appeal of the WCJ’s order
denying joinder. Those issues, however, are not properly before the Court at this time, as the
only issue now before the Court is whether the Board erred in dismissing the Fund’s appeal
based on timeliness.

5
 (h) After joinder, the original petition shall be deemed
amended to assert a claim of the claimant against an
additional defendant. The additional defendant is liable
to any other party as the [WCJ] orders. The additional
defendant shall have the same rights and responsibilities
under this chapter as the original defendant.
(i) The [WCJ] may strike the petition for joinder, and the
[WCJ] may order the severance or separate hearing of a
claim presented therein, or as a result of the joinder.
(j) The [WCJ] will issue an order when the motion to
strike a petition for joinder is granted.
(k) An order to strike a petition for joinder does not
preclude or delay further proceedings before the [WCJ].

34 Pa. Code § 131.36.
In 3D Trucking, this Court considered whether a WCJ’s decision
granting a joinder petition was a final order. The claimant in 3D Trucking had
filed a joinder petition seeking to add 3D Trucking as a defendant. 3D Trucking
did not file an answer to the joinder petition or appear before the WCJ. The WCJ
granted the joinder petition, finding 3D Trucking to be a joint employer of the
claimant. 3D Trucking appealed to the Board, and the Board affirmed. 3D
Trucking then appealed to this Court, and the claimant argued, in part, “that the
WCJ’s joinder order [was] interlocutory and thus the Board’s order is not
appealable to this Court.” 3D Trucking, 921 A.2d at 1285. The claimant requested
that this Court quash the appeal. 3D Trucking countered that the order constituted
a final disposition of the joinder petition and, thus, was a final, appealable order.
We reasoned, based upon the above-quoted joinder regulation:
[A] WCJ is authorized to treat a joinder petition as
a new claim petition filed on behalf of a claimant against
a putative employer. The rule does not address the
timing of disposition of a joinder petition and related
petitions, leaving that matter to the reasoned discretion of
a WCJ. Thus, the rule does not require consolidation of

6
 the joinder petition with other related petitions. Also, the
rule does not prohibit the resolution of a joinder petition
before other related petitions where, as here, the joinder
petition appears to be uncontested and to provide a
source of benefits, and there is a question of the
effectiveness of an interim order for benefits.
In this case, the WCJ’s decision resolved all issues
raised by the joinder petition. That it was intended to do
so and to be a final order on 3D’s liability is clear.
Further, no party requested an opportunity to submit
additional evidence on that issue or to defer resolution of
the joinder. To the contrary, given the bankruptcy of the
party liable under the interim order for benefits, there
was a reasonable basis for prompt and final disposition of
the joinder petition. Under these circumstances, the
order disposing of the joinder petition was a final order
as defined in Pa. R.A.P. 341(b)(1). For these reasons,
the motion to quash is denied.

3D Trucking, 921 A.2d at 1287 (emphasis added).
This Court’s decision in 3D Trucking was clearly fact-specific. In 3D
Trucking, we commented that the WCJ’s decision resolved all of the issues raised
by the joinder petition, but we were also persuaded by the fact that the WCJ in that
case made clear his or her intention that the order was meant to be a final order
regarding 3D Trucking’s liability. Unlike 3D Trucking, it is not clear in this case
that the WCJ had an urgent need to resolve the joinder petition before she resolved
the initial claim petition. Thus, we recognize various distinctions between this
case and 3D Trucking, including the WCJ’s labeling of her decision in this case as
one that was not final and not appealable and her reconfirmation of the April 2012
order in her final decision on the merits. Thus, here as compared to 3D Trucking,
it would appear that the WCJ’s intentions were inapposite to those of the WCJ in
3D Trucking. In addition, 3D Trucking involved a late appeal of a joinder petition

7
to which no timely motion to strike had been filed. Here, the WCJ granted a
timely motion to strike the joinder petition.
Contrary to 3D Trucking, in Travelers Insurance Company v.
Workmen’s Compensation Appeal Board (CAN Insurance), 409 A.2d 514 (Pa.
Cmwlth. 1980), we concluded that a decision of a WCJ permitting a defendant to
join additional defendants is interlocutory and jurisdictional in nature. Traveler’s
Ins. Co., 409 A.2d at 515 (insurer’s challenge to WCJ’s order joining it as
additional defendant was interlocutory and unappealable). In reaching that
conclusion, we relied upon our Supreme Court’s opinion in Zakian v. Liljestrand,
264 A.2d 638 (Pa. 1970), in which the Supreme Court considered whether an order
refusing to grant joinder of an additional defendant in an action seeking damages
for personal injuries constituted a non-appealable interlocutory order or an
appealable final order. The Supreme Court opined: “While an order permitting a
defendant in an action to join an additional defendant is interlocutory, [] an order
sustaining preliminary objections to the joinder of an additional defendant,
dismissing defendant’s complaint as to the additional defendant, and dropping the
additional defendant from the suit is a ‘final order.’” Zakian, 264 A.2d at 640
(footnote omitted).
Thus, 3D Trucking, Travelers Insurance Company, and the joinder
petition regulation demonstrate that a WCJ has broad discretion with regard to the
timing of the resolution of joinder petitions. For that reason, whether an order
granting a joinder petition (or denying a motion to strike a joinder petitioner) is a
final order or an interlocutory, non-appealable order may depend upon the
circumstances of the matter before the WCJ and the intention expressed by the
WCJ. These cases and the regulation, however, all suggest that an order of a WCJ

8
striking a joinder petition constitutes a final, appealable order, because the order
disposes entirely of the issues set forth in the joinder petition.
Despite this general rule that an order denying a joinder petition is a
final order, the Fund offers two rationales in support of its claim that the Board
erred in concluding that the WCJ’s order denying joinder was a final order. First,
the Fund asserts that the April 2, 2012 order did not dispose of all issues and
parties relating to Claimant’s injury and disability, but rather only addressed the
joinder petition and Somerset’s role as a putative insurer that might have
responsibility for the payment of any benefits that the WCJ might award. As
Somerset notes, however, in 3D Trucking, we concluded generally that a joinder
petition is distinct from a claim petition. This principle is highlighted by 34 Pa.
Code § 131.36(h), which provides that only after joinder is granted should a
claimant’s original petition “be deemed amended to assert a claim of the claimant
against an additional defendant.” Id. Once joinder is granted and this deemed
amendment occurs, “[t]he additional defendant shall have the same rights and
responsibilities under this chapter as the original defendant.” (Id.) Here, because
the joinder and claim petitions were separate and distinct, the WCJ’s order fully
disposed of all issues and parties relating to potential joinder. There was no need
for the WCJ to address matters relating to the claim petition in order to resolve this
distinct and separate issue. Thus, we do not find the Fund’s argument persuasive.
The Fund also argues that public policy favoring the quick resolution
of a claimant’s right to compensation supports its position that the WCJ’s
April 2012 order was interlocutory. The Fund claims that the final resolution of
joinder petitions via an appeal process should be deferred in order to assure that
disabled claimants obtain benefits in an expeditious manner. We note, however,

9
that subsection (k) of 34 Pa. Code § 131.36 provides that “[a]n order to strike a
petition for joinder does not preclude or delay further proceedings before the
[WCJ].” This provision appears to suggest that an appeal from an order striking a
joinder petition does not provide a reason for a WCJ to defer hearings on and
resolution of the merits of a claim. This makes sense in the case where, as in 3D
Trucking, there are two potential employers or insurers that might be responsible
for the payment of benefits. The proceedings against the named employer or
insurer may proceed, despite the WCJ having stricken the joinder of another
employer or insurer. Thus, we also do not find the Fund’s public policy argument
to be persuasive.
Although we agree with the Board’s analysis that the WCJ’s order
denying joinder was a final order, we disagree that the analysis ends there. The
Board essentially ignores the fact that the WCJ explicitly identified her initial
decision and order as interlocutory and not subject to appeal. While such language
does not transform an otherwise final order into an interlocutory order, it is
relevant to an analysis of timeliness. As a result of the WCJ’s apparent confusion
regarding the finality of orders granting joinder as compared to orders striking a
joinder petition, the Fund may be entitled to an appeal nunc pro tunc.
This Court has found that a breakdown in the administrative process
occurs when the party seeking to appeal an order in an untimely manner establishes
that its delay in taking action was caused by extraordinary circumstances involving
fraud, a breakdown in the administrative process, or non-negligent circumstances
related to the claimant, his counsel, or a third party. C.S. v. Dep’t of Pub.
Welfare, 879 A.2d 1274, 1279 (Pa. Cmwlth. 2005). When such a breakdown
occurs, a court or adjudicator may consider an otherwise untimely appeal of an

10
order on a nunc pro tunc basis. Id. In this matter, the Fund does not claim that any
fraud or non-negligent circumstances related to counsel or parties supports a nunc
pro tunc appeal. Thus, the only possible grounds for nunc pro tunc review would
be a breakdown in the administrative process. Simple negligence on the part of an
attorney does not constitute a breakdown in the administrative or judicial process,
Department of Transportation, Bureau of Motor Vehicles v. Shemer, 629 A.2d
1063, 1066 (Pa. Cmwlth.), appeal denied, 637 A.2d 294 (Pa. 1993), but confusion
that flows from an adjudicator’s serial orders that create confusion or alter previous
directory admonishments, may, in the proper circumstances, support a finding that
a breakdown in proceedings occurred, Borough of Duncansville v. Beard, 919 A.2d
327 (Pa. Cmwlth.), appeal denied, 931 A.2d 659 (Pa. 2007). Here, as noted by the
Fund, it is undisputed that although the Board later concluded that the WCJ’s
initial order was a final order, the language of the WCJ’s initial order advised
otherwise and explicitly precluded the Fund from appealing at that time.
In this case, the Court is at a loss as to why the WCJ affirmatively and
repeatedly described the order as interlocutory. The WCJ’s direct admonishment
not to appeal the order was incorrect. We conclude that when an adjudicator
erroneously includes prohibitory language in a decision and order that not only
fails to advise a litigant of the right to appeal (as is the custom in workers’
compensation matters), but rather affirmatively directs the litigant that he or she
may not appeal an order, the litigant (or his or her counsel) may have grounds to
seek nunc pro tunc review. Given this standard, the Fund must be given an
opportunity to establish that a breakdown in the administrative process occurred
such that the Board should have considered the Fund’s appeal nunc pro tunc.

11
 Accordingly, we vacate the Board’s order and remand the matter to
the Board for further remand to the WCJ to consider whether the Fund is entitled to
appeal the WCJ’s order denying joinder nunc pro tunc.

P. KEVIN BROBSON, Judge

12
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Department of Labor & Industry, :
Uninsured Employers Guaranty Fund, :
Petitioner :
:
v. : No. 445 C.D. 2015
:
Workers’ Compensation Appeal :
Board (Gerretz, Reliable Wagon :
and Auto Body, Inc., and Somerset :
Casualty Insurance Company), :
Respondents :

ORDER

AND NOW, this 14th day of June, 2016, the order of the Workers’
Compensation Appeal Board is VACATED. The matter is REMANDED to the
Board, which is directed to remand the matter to the Workers’ Compensation
Judge for the purpose of considering whether the Uninsured Employers Guaranty
Fund may appeal nunc pro tunc.
Jurisdiction relinquished.

P. KEVIN BROBSON, Judge