and i'm going to keep my presentation this morning short and allow it to mirror the written materials that i supplied to the court from american builders perspective the narrow issue in this appeal is whether the district court erred when it decided the exclusivities provision contained in pennsylvania's worker's compensation act deprived of jurisdiction to address a contract dispute between customers dilutions the defendant a and my client american builders specifically the question the dispute centered on the question of whether american custom supplied american with materially false information when applied for insurance  workers compensation insurance this dispute is a simple one it has a complex overturns because of some jurisdictional questions but it's based on simple principles of contract law and notably the  to american in the rescission of the policy and it's only because of the potential implications in ancillary workers compensation proceedings that this matter has has moved into the territory that we now find jurisdiction to consider the contract dispute it's our position that this result was an error now the test that that we believe that was a political will and not applied was introduced by the pennsylvania supreme court in the case of martin versus lancaster battery and in that case the pennsylvania supreme court carved out created a narrow exception to exclude any exclusivity under the workers compensation act holding in that case  the facts of that case that the act could not provide the pointis with an exclusive remedy for an alleged aggravation of a work related injury because the plaintiffs in poor had fraudulent and martin was that the proceeding what brought you or workers compensation proceeding in fact we interpret it that way in one regard good health here be different if there had been no workers compensation proceeding or if you no claim had yet been filed but that's not the case we have we have situation where there was compensation payable already agreed upon and the workers compensation co the court was was considering was whether a pointis employee who had sustained a work related injury could simultaneously or i guess in sequence seek a remedy out of the worker's compensation for the work related injury and then in a separate civil action based on common law principles seek recovery of damages for the aggravation of the work related injury that was caused by the misrepresentation here the key distinction distinguishing facts are that the dispute does not exist between the employee and the employer the misrepresentation doesn't exist in that relationship it's on the other side of the equation and that is that it's between the employer insured and the insurer and why that's significant has i think it brings the cooney case into play which is principle i respectfully submit that it's immaterial as to whether or not the civil claim for the contract based dispute was was filed before or after the workers compensation proceeding was five mr mike go if i ask you this question no i think i understand your argument but if why couldn't you compensation act or section seven hundred and ten of the worker's compensation act and had that done before within the workers compensation system well i guess the the the concern that we have compensation case and i understand your question is why you know did we not seek a remedy an act based remedy that may not specifically have asked for declaratory relief it may have asked for a remedy that we s ht and this declaratory judgment action and frankly because we had a separate legal claim that we filed at the same time we felt that the district court was was the better place to file the action and have one action to decide both of those issues and we believed although this court's decision and rarity came out after  we filed the action excuse me in the district court we believe that for for the same reasons that switcher stiction was properly before the district court but when you say that the better for him mr monaco that  presupposes that the workers compensation reform was also in available form correct well i would concede the point and at the same time acknowledge that we could have filed the action in the court a common police question about got situation but for your lawsuit which declared when which the court said no for their obligation to scott under the workers compensation system could scott have come back asking for more money and he already got i guess two and a half one million would that have been possible well the direct answer to your question your honor is that american has never stopped paying benefits and continues to pay benefits both in terms of wage related benefits to mr scott and we're paying one hundred percent of his medical bills but that my question you have a court order perhaps it could have been more carefully crafted but the language that says we resupplied to the court in the suggested order actually tied that qualifying language to the policy the viability of the policy and  and offered it as evidence in support of petitions that we filed seeking relief under the the act and on that point independent of the contractual obligation that american to mr scott into the policy i issued a notice of compensation payable in the fall of two thousand and fifteen when he was injured under the notice of compensation payable americans assumed a separate legal obligation to pay work related benefit or work injury related benefits to mr scott and is legally obligated to do so until it is excused from doing so if it's excuse from doing so by the workers compensation judge the district court's decision of the insurance policy does not impact that legal obligation under any way and in fact all that it did was provide us with a piece of evidence to take to the worker compensation judge and say the policy upon which the relationship was established was voided and rescinded ab initio and so i respectfully submit that mr scot entitlement to receive payment was fundamentally established when my client issued the n c p to him done that those petitions are pending before judge kalish and the workers compensation proceeding and we in fact have a status conference before him next week so if we affirm what the district court did here you still have an opportunity to get the relief you seek in seems to really strongly cut against you in the sense that if we were to agree with your position in this that he is all we would be permitting  piecemeal adjudications of workers compensation hearings and also perhaps creating a situation where the federal courts are at odds with the state proceedings w policy judge kalish and would be free to ignore that evidence he can afford whatever weight to that evidence that he wants to afford to it we understand and we recognize that the there's a public policy that underlies the workers compensation proceeding excuse me the what workers compensation act and that even in a circumstance like this where my client was duped and into providing coverage and has paid significant amounts to it on behalf of mr scott it it had been discontinued and refiled in a separate case in the middle district because it was another party added so in that respect there there is a a reason there are reasons independent of the workers compensation does say that but but it qualifies that language by stating that the fundamental examination is whether the harm complained of us compensable under the act and maybe that's a more direct way for me to state my position and that is as to the relationship between custom installations and american builders the act is not provide it with a remedy and  the court said they had no jurisdiction so if you read out the say that the preferable forum is in the workers compensation system and they were dismissed or your rescission requests i read it to say that they lacked jurisdiction although i i understand it can be interpreted in more than one way ok which would implicate the question of the district court's discretionary power and i believe record considerations because there was also a as i mentioned a claim for legal relief and as i read and understand that rare decision where there are independent claims for for legal declaratory w minutes for the intervenors just to clarify a couple of the points that mr monocle may st of all the order that the american builders asked the trial court to enter and that the trial court initially entered in that it's asking this court to reinstate is very clear and in holding and declaring that american had in the past and has now and going forward no legal obligation to mr scott under any theory of law or equity so it is not seeking  mr monaco has described which would in effect essentially be an advisory opinion if it's seeking to get out of all of its all the geisha ins to mr scott under the worker's comp act and in fact after it obtained that order from the trial court initially it  to clear the requests for declaratory relief is the only claim in this case there are no other claims against custom installations as it as the court has pointed out and the questions to mr monaco the claim the tort claim fraud claim was dismissed with prejudice that claim is gone the case mr monaco's referred to that has been refiled is against the insurance broker evans purgative not against custom installations so there are no claims other than it's clear tory judgement claim and that claim was properly dismissed by the trial court this is not simply a contract dispute between an insurer and insured it arises in the context of the state  workers compensation system notably it arises at a time when there is a parallel state workers comp proceeding going on addressing these exact same issues and as again as i think the question to mr monaco pointed out american builders can get this exact really if it can challenge its obligation to mr scott it can challenge whether or not custom installation should be responsible for the compensation as opposed to american builders in the workers comp proceeding and as mr monaco i think conceded they are challenging that so that is being litigated in the workers comp proceedings which either pennsylvania law and under these this court's precedents is the only proper place for that those issues to be litigated music marriage being then that that the merits of that and that's being litigated at this moment before work is contracted and has been being litigated there's been proceedings depositions hearings in the worker's comp proceeding involving that precise issue american worker's comp judge has the authority and has the exclusive authority to initially adjudicate that exact claim and if the american builders loses that claim on the merits it can appeal that to the workers compensation appeal board if it loses again on the and all other liability of the lawyer it records the liability and employer and does not really say no action shelby clause in any court in connection with an insurance policy where you know a claim is pending if you will i'm just wondering whether it is that you needed to be more specific on whether maybe we need to add the pennsylvania supreme court in a situation where and and it sure is seeking same thing in a insurer was seeking to set aside a notice of compensation payable which is exactly what american voters is trying to do here in that case it alleged that there had been misrepresentations and the court said you go to the workers comp judge then compensation proceeding got that most likely it could proceed in court if there had not been a workplace injury let's say hypothetically that american builders learned before there's any workplace injury that it believes that custom installations has made misrepresentations to pick your it's workers compensation policy and just to be clear in the court the trial court did not lead american dollar summary judgment on its fraud claim before it dismissed it i don't think the facts are as clear as american builders present believe that aside assume that there have been misrepresentations to pitch or the policy before there is a workplace injury america miller the lord system wants to get out of the contract i don't dispute that in  that context where there is not a workplace injury there are no pending worker's comp proceedings and it does not have the ability to go before a worker's compensation judge to challenge the policy to try to get out of the policy it could file claim in court that's not the case so they filed this case not only after the injury not only after there was a worker's comp proceeding but after it had filed a notice of compensation payable accepting responsibility and under the plain terms of the worker's comp act and not just the exclusiv provision but other many of the other provisions we cited the notice of compensation payable is valid in binding unless it's modified or set aside as provided in the worker's compensation that and it's clear i think under pennsylvania law that in that context in the specific context of this case where there's been an injury a workplace injury where the insurer has accepted responsibility that it could not go into state court and challenge the policy as american dollars is doing here period it could not go into state court if it did it i think it's clear at the worker's comp back and under the pennsylvania case law that it would be thrown out of court and were told it had to go back to the worker's comp judge and back to the worker's comp proceedings and therefore even though there's diversity  hear this diversity question because that's what this action is it's a diversity action and i don't shop not sure that i read judge gibson's order as  s the workers compensation system well to the extent i think that i would agree that i don't read the trial court's decision as saying it does not have jurisdiction i mean as a simple matter i agree your honor pennsylvania law so i'm simply put american dollars fails to state a claim there is they could not raise the claim in pennsylvania state court for recision of a worker's comp policy under these circumstances it would be thrown out of state court and this court has held th where case could not be brought under state law that's the basis for a diversity claim that it can't be brought in federal court even if there's diversity so that's number one and number two because this is a clear tory judgment claim i think under this court's precedent like s and rice for that unquestionably it would not be an abuse of discretion for the trial court to do what it did to dismiss the claim indeed in some me this court held it was an abuse of discretion not to dismiss a claim that was very much like this and didn't even allies in the worker's comp context so i think when you look at that somebody the court's decision and suddenly you look at this court decision and winter bird which involved not declaratory judgment but with tort claims in the worker's comp context you look together there's simply no way to conclude that the trial court erred in dismissing this claim this declaratory judgment claim raising issues for being litigated in the workers constant i mean it's not but it's not for want of jurisdiction and for american followed with the workers compensation judge before the office of the tube on receiving the district court's order to terminate endorse set aside the notice of compensation  terminate all americans obligations to mr scott under the worker's compensation act and those that relief is sought soley on the basis of the district court's order rendering the policy void initio the district court's order is not being used simply as a piece of evidence but as a court order which they're asking the worker's compensation judge to comply with wall but mr judge said otherwise in this court against the workers compensation judge as well mr scott came out to the fact that they did stop paying benefits for a brief period to mr scott we followed a penalty petition on behalf of mr scott before the workers compensation judge's result of that stoppage of payment which came after they saw their positions in that way they said you were bo by the district court's order another would use you before the workers compensation judge at this point and those proceedings have been stayed pending this honorable court's ruling on this appeal is going to workers compensation judge analyze the underlying stance of issues concerning whether the policy could be rescinded whether there was a tiriel misrepresentation there is no order which in the polls you want you won in the district court we did but my understanding is to disappear will american seeking to have that order reinstated if it is that would go before the workers compensation judge that order would be the sole basis for the relief american is seeking before the workers compensation judge are you arguing mr fair then that is you prevail in this appeal that mr monaco is not allowed to be somehow to hid from challenging in the worker's compensation form the requirement that american builders continue to make payments to mr scott no your honor i am not  that he wants a federal court order indicating that rescission of the policy was appropriate is that your understanding mr f injunction has the court's aware of those matters are not before the court but just by way of background we sought those remedies after the commonwealth filed papers in the ancillary workers compensation proceeding telling the court there that they were free to ignore think that there is as this judge gives in those gaps in the law on the specific facts of this this case if however the court the district court had applied martin properly it's our position that it would have concluded that the exclusivity provisions did not apply and that it should not have kicked the case back to the workers compensation court as things stand now from our perspective the district court has told american builders that it has no remedy for the tort that occurred between custom installations and american builders and with that i will be quiet unless there are any questions mr mike  there any question i would have is you said you would welcome certification and you would have had that opportunity had you followed this case in state court initially understood ok do you agree with mr  action we would have taken the same position in a state court action so i disagree with him respect