J-A05033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DENICE WICKER AND LINDY WICKER, 

H/W,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

KORMAN SERVICES, INC.,

Appellee No. 948 EDA 2014

Appeal from the Order Entered February 28, 2014

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 0812268-33-2

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015

This is an appeal from an order directing enforcement of a workers’ 

compensation lien. We affirm.

Lindy and Denice Wicker, husband-and-wife Appellants, filed suit 

against Korman Services, Inc. (“Korman”)1on December 3, 2008. Korman 

was responsible for maintenance of the property where Denice Wicker 

(“Denice” or “Appellant”) fell at work on June 25, 2007, when she tripped on 

“bunched up” floor mats outside of her office. Complaint, 12/3/08, at 1–2; 

Answer, 3/16/09, at 1. Denice broke her arm and alleged in the complaint 

____________________________________________

1

 Korman Commercial Properties, Inc. answered the complaint asserting 

that it was incorrectly designated in the complaint as Korman Services and 

that it was the entity responsible for maintenance. Answer, 3/16/09, at 1.
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that she likely would require shoulder-replacement surgery. Complaint, 

12/3/08, at 3. Denice was injured in the scope of her employment with 

American Bread Company (“ABC”), which was insured by American Zurich 

Insurance Co. (“Zurich”), the workers’ compensation carrier, AppelleeIntervenor herein. Petition to Intervene, 3/18/13, at 1–2. Zurich paid 

Denice’s medical bills in the amount of $12,241.00. Id.

Appellants and Korman’s insurance carrier agreed to settle the case for 

$90,000.00. Petition to Intervene, 3/18/13, at 2. Denice asserts that there 

was little litigation activity on the docket because “the case was essentially 

tried before the mediator.” Appellants’ Brief at 7. The trial court, as well, 

noted an absence of docket activity after the filing of Appellants’ Reply to 

New Matter on May 29, 2009. Trial Court Opinion, 4/25/14, at 1. Zurich 

sought to intervene on March 18, 2013,2to enforce its subrogation rights as 

ABC’s workers’ compensation insurer pursuant to 77 P.S. § 671, 

“Subrogation of employer to rights of employee against third persons.” 

Appellants filed a response and new matter on May 13, 2013. The trial court 

permitted Zurich to intervene by order dated August 8, 2013.

____________________________________________

2

 The original petition dated February 20, 2013, apparently was incomplete, 

and Zurich filed it again on March 18, 2013. See Docket entries sixteen and 

seventeen, respectively. See also Zurich’s Brief at 6 n.11. We note that 

Zurich’s brief confusingly includes duplicate pagination and footnote 

numbering by beginning such numbering over again from “1” in the 

“Argument” section of its brief. Thus, for clarity, we will designate any 

references to page numbers in the duplicate section as “Argument-__.”
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On October 1, 2013, Zurich filed a petition seeking to compel Denice 

to satisfy Zurich’s workers’ compensation subrogation lien in the amount of 

$6,569.25 against her third party settlement recovery from Korman. Zurich 

also sought fees and costs relating to its efforts to enforce the lien in the 

amount of $1,618.82. On November 26, 2013, the trial court issued a rule 

to show cause, returnable on December 23, 2013, why Zurich was not 

entitled to the relief requested. When Appellants failed to file a response,3

Zurich filed a motion to make the rule absolute on January 7, 2014. On 

February 28, 2014, the trial court granted the motion to make the rule 

absolute and ordered Appellant to make prompt payment of $8,188.07 to 

Zurich. Appellants filed a notice of appeal on March 21, 2014. Both 

Appellants and the trial court complied with Pa.R.A.P. 1925.

Appellants present the following question for our review:

Whether the [c]ourt erred as a matter of law in permitting 

[Zurich] to intervene under Pa.R.C.P. 2327 without a hearing in 

a settled case no longer pending in which distribution had been 

made and the [c]ourt lacked jurisdiction to enter judgment 

against Appellants (the Wickers) who were never served with 

any pleadings requiring them to defend.

Appellants’ Brief at 5.

As noted by our Supreme Court, “The right to subrogation and 

reimbursement has been described as absolute and automatic.” Frazier v. 

____________________________________________

3

 While Appellants asserted at oral argument that they did respond, the 

record does not substantiate their claim; the trial court, as well, noted that 

Appellants failed to respond. Trial Court Opinion, 4/25/14, at 3.
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W.C.A.B. (Bayada Nurses, Inc.), 52 A.3d 241, 247 (Pa. 2012) (citing 

Thompson v. WCAB (USF & G Co.), 781 A.2d 1146, 1151 (Pa. 2001)). 

Moreover:

Subrogation is an “equitable doctrine intended to place the 

ultimate burden of a debt upon the party primarily responsible 

for the loss.” Jones v. Nationwide Prop. and Cas. Ins. Co., 

613 Pa. 219, 32 A.3d 1261, 1270 (Pa. 2011). It allows the 

subrogee (the insurer) to step into the shoes of the subrogor 

(the insured) to recover from the party that is primarily liable 

(the third party tortfeasor) any amounts previously paid by the 

subrogee to the subrogor.

AAA Mid-Atlantic Ins. Co. v. Ryan, 84 A.3d 626, 632 n.6 (Pa. 2014).

Whether to allow intervention is a matter vested in the discretion of 

the trial court, and the court’s decision will not be disturbed on appeal 

absent a manifest abuse of its discretion. Johnson v. Tele-Media Co. of 

McKean County, 90 A.3d 736, 739–740 (Pa. Super. 2014). “A trial court 

will not be found to have abused its discretion unless the record discloses 

that its decision was manifestly unreasonable or was the result of partiality, 

prejudice, bias, or ill-will.” Id. (citing Stenger v. Lehigh Valley Hosp. 

Center, 554 A.2d 954, 956 (Pa. Super. 1989)).

Appellants contend that Zurich failed to comply with Pa.R.C.P. 2327, 

2328, and 2329. Those rules provide, in pertinent part, as follows:

Rule 2327. Who May Intervene

At any time during the pendency of an action, a person not 

a party thereto shall be permitted to intervene therein, subject 

to these rules if
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1) the entry of a judgment in such action or the satisfaction 

of such judgment will impose any liability upon such 

person to indemnify in whole or in part the party against 

whom judgment may be entered; or

2) such person is so situated as to be adversely affected by a 

distribution or other disposition of property in the custody 

of the court or of an officer thereof; or

3) such person could have joined as an original party in the 

action or could have been joined therein; or

4) the determination of such action may affect any legally 

enforceable interest of such person whether or not such 

person may be bound by a judgment in the action.

Rule 2328. Petition to Intervene

a) Application for leave to intervene shall be made by a 

petition in the form of and verified in the manner of a 

plaintiff’s initial pleading in a civil action, setting forth the 

ground on which intervention is sought and a statement of 

the relief or the defense which the petitioner desires to 

demand or assert. The petitioner shall attach to the 

petition a copy of any pleading which the petitioner will file 

in the action if permitted to intervene or shall state in the 

petition that the petitioner adopts by reference in whole or 

in part certain named pleadings or parts of pleadings 

already filed in the action.

b) A copy of the petition shall be served upon each party to 

the action.

Rule 2329. Action of Court on Petition

Upon the filing of the petition and after hearing, of which 

due notice shall be given to all parties, the court, if the 

allegations of the petition have been established and are found 

to be sufficient, shall enter an order allowing intervention; but 

an application for intervention may be refused, if

1) the claim or defense of the petitioner is not in 

subordination to and in recognition of the propriety of the 

action; or
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2) the interest of the petitioner is already adequately 

represented; or

3) the petitioner has unduly delayed in making application for 

intervention or the intervention will unduly delay, 

embarrass or prejudice the trial or the adjudication of the 

rights of the parties.

Pa.R.C.P. 2327–2329.

Appellants argue that the instant matter was not a pending action as 

required by Pa.R.C.P. 2327. Appellants’ Brief at 16. Appellants submit that 

the trial court “improperly equated the pendency of the case with something 

totally different, its voluntary discontinuance by a plaintiff prior to trial which 

does not end the litigation unless done ‘with prejudice.’” Appellants’ Brief at 

17 (citing Robinson Twp. School District v. Houghton, 128 A.2d 58 (Pa. 

1956)). Appellants make much of the fact that the instant case had ended 

by agreement of both parties; thus, the rule relied upon by the trial court 

was inapplicable because “there was no pending case to discontinue by only 

one party, the plaintiff, with an eye toward litigating the case in the future.” 

Appellants’ Brief at 17.

Appellants assert they were never served with the petition to 

intervene, and it did not contain a pleading endorsed with a notice to plead 

under Pa.R.C.P. 2328, containing a request of the relief sought and the 

reasons the relief was required. Thus, they maintain they were not afforded 

the opportunity to plead or retain counsel to defend Zurich’s allegations. 

They cite no support for these bald allegations.
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Appellants also assail the fact that the trial court granted the petition 

to intervene without holding a hearing “as required by Pa.R.C.P. 2329.” 

Appellants’ Brief at 17. They claim that if a hearing would have been held, 

the petition would have been denied because Zurich failed to allege any facts 

to support the conclusion: 1) that it did not unduly delay its filing of the 

petition, or 2) that Appellants were not prejudiced by the delay. Id. at 15. 

They cite no support for these allegations.

In response, Zurich explained the background of its filing of the 

intervention petition, as follows. Appellants’ counsel allegedly mailed a 

letter to Zurich, offering to reimburse Zurich $4,896.40 toward Zurich’s lien 

amount of $6,569.25,4 which Zurich rejected. Reply to [Appellants’] 

Response with New Matter to [Zurich’s] Petition to Intervene, 5/23/13, at 

Exh. A.

Zurich suggests that it never acknowledged that the case was settled 

and the funds were distributed, as alleged by Appellants. Rather, Zurich 

____________________________________________

4

 The mandatory subrogation lien amount is a mathematical calculation on a 

form known as a Third Party Settlement Agreement. The pertinent statutory 

requirement is as follows:

§ 121.18. Subrogation

(a) If an employee obtains a third-party recovery under section 

319 of the act (77 P. S. § 671), a Third Party Settlement 

Agreement, Form LIBC-380, shall be executed by the parties.

34 Pa. Code § 121.18; 7 West’s Pa. Prac., Workers’ Compensation § 12:38 

(3d ed.); Zurich’s Brief at 2 n.3.
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avers that it maintained only that the parties “reached a settlement,” 

claiming that the very purpose of Zurich’s petition to intervene was “to 

prevent a distribution of disputed settlement funds and to take action 

before the case was discontinued.” Zurich’s Brief at 5 n.9 (emphasis in 

original).

Zurich echoes the trial court and posits that Appellants’ case against 

Korman was open and pending when Zurich intervened because Appellants 

had not filed a praecipe to discontinue it under Pa.R.C.P. 229(a) nor had 

Appellants executed a Third Party Settlement Agreement (“TPSA”) required 

under 34 Pa. Code § 121.18(a). Zurich also underscores that the 

Department of Labor and Industry Regulations direct that an employee who 

obtains a third party recovery “shall” execute a TPSA with the employer and 

the employer’s compensation insurer and file it with the Bureau of Workers’ 

Compensation. Spillman v. W.C.A.B. (DPT Business School), 2011 WL 

10828080, ___ A.3d ___ (Pa. Cmwlth. 2011) (unpublished memorandum). 

Zurich suggests that Appellants did not file a TPSA because the insurance 

company paying the benefits, in this case, Zurich, must “review, approve 

and sign off on the agreement of the terms of the TPSA. In this case, there 

was never any communication of a settlement by [Denice] to Zurich until 

after the settlement was concluded. At that time, a compromised lien 

reimbursement offer was made to Zurich which was unacceptable.” Zurich’s 

Brief at Argument-7 n.1. Zurich avers this fact is additional proof that 
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Appellants’ action was not terminated when Zurich petitioned the court to 

intervene.

Zurich contends that Pa.R.C.P. 2329 does not require a petitioner to 

request a hearing. It maintains that if our Supreme Court wanted to require 

a petitioner to request a hearing, it would have written it explicitly into Rule 

2329, and it did not do so. Zurich also suggests there was no prejudice to 

Appellants, asserting that the reason to require a hearing is to allow the 

petitioner the opportunity to prove that it satisfied one of the Pa.R.C.P. 2327 

elements. Zurich’s Brief at Argument-11 (citing Santangelo Hauling, Inc. 

v. Montgomery County, 479 A.2d 88, 89 (1984) (“The reason for requiring 

a hearing is clear: to give the petitioner the opportunity to establish, 

factually, that he comes within one of the four categories of persons who are 

entitled to intervene under Pa.R.C.P. 2327”) (internal citation and quotation 

omitted)). Here, Zurich points out that Appellants’ complaint on appeal is 

that the trial court erred in granting Zurich’s petition to intervene. Zurich 

submits that in cases involving a successful, but opposed, petition to 

intervene, the party opposed to the court’s grant of the petition must have 

been “prejudiced” by the court’s ruling. Zurich maintained to the trial court 

and advances on appeal that Appellants never complained they were 

prejudiced by the trial court’s order permitting Zurich to intervene. 

Relatedly, Zurich proffers that it had to make only a prima facie showing 

that it fell within one of the four categories of Pa.R.C.P. 2327, and it did so. 
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Zurich’s Brief at Argument-10. See Johnson, 90 A.3d at 742 (“Once a 

petitioner seeking intervention presents a prima facie case for intervention, 

there is no requirement that he prove his case before intervention will be 

permitted, since otherwise he would be forced to try his case twice.”). 

Finally, Zurich echoes the trial court’s decision of waiver, maintaining that 

Appellants never made a claim regarding lack of service of the petition to 

intervene to the trial court.

We address Appellants’ claim that the case was not pending when 

Zurich filed its petition to intervene in violation of Pa.R.C.P. 2327. While this 

precise issue, as worded in Appellants’ Brief, was not identified verbatim in 

Appellant’s Pa.R.A.P. 1925(b) statement, we construe the claim as an “error 

identified in the Statement . . . deemed to include every subsidiary issue 

contained therein which was raised in the trial court.” Pa.R.A.P. 

1925(b)(4)(v); Trial Court Opinion, 4/25/14, at 3.

We reject Appellants’ averment that the petition to intervene was not 

filed during the pendency of the action. The trial court determined that the 

case remained pending because Appellants had never filed a praecipe to 

discontinue the case and, in fact, had inferred as much in their response to 

the intervention petition, where they averred that an “Order to Settle, 

Discontinue and End was presented to Defendant Korman to be filed with 

the Court.” Response to the Petition to Intervene and New Matter, 5/13/13, 

at ¶¶ 17, 18 (emphasis added). We agree with the trial court that the fact 
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that Appellants may have come to some private agreement does not alter 

this conclusion. The trial court noted that pursuant to Pa.R.C.P. 229(a), a 

discontinuance is the “exclusive method of voluntary termination of an 

action, in whole or in part, by the plaintiff before commencement of the 

trial.” Trial Court Opinion, 4/25/14, at 4; Pa.R.C.P. 229(a) (“A 

discontinuance shall be the exclusive method of voluntary termination of an 

action, in whole or in part, by the plaintiff before commencement of the 

trial.”)

Moreover, in reviewing the docket activity for this case, we note the 

following. Appellants filed their complaint against Korman on December 3, 

2008. Multiple entries followed, through January 25, 2010, but there is no 

docket activity for the ensuing two years. On February 9, 2012, the Bucks 

County Prothonotary filed a termination notice advising Appellants that the 

“court intends to terminate this case without further notice because the 

docket shows no activity on the case for at least two years.” Notice of 

Proposed Termination of Court Case, 2/9/12. Six days later, on February 

15, 2012, Appellants filed a certificate of active status, indicating that “[t]he 

parties are attempting mediation before certifying the case for trial.” 

Statement of Intention to Proceed, 2/15/12; Docket Entry 16. The next 

docket entry after Appellants’ certificate of active status is Zurich’s Petition 
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to Intervene. Docket Entry 17, 2/20/13.5 We discern nothing in the record 

that compels a conclusion that the trial court abused its discretion in 

determining that the action remained pending for purposes of Pa.R.C.P. 

2327.6

Appellant’s next assertion is that the trial court erred in allowing Zurich 

to intervene without holding a hearing. The trial court did not address this 

claim. This issue was not included in Appellants’ statement of errors 

complained of on appeal, nor is it suggested thereby; therefore, it is waived. 

Pa.R.A.P. 1925(b)(4)(vii). Brandon v. Ryder Truck Rental, Inc., 34 A.3d 

104, 111 (Pa. Super. 2011); Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa. 

Super. 2009) (citing Southcentral Employment Corp. v. Birmingham 

Fire Ins. Co. of Pa., 926 A.2d 977, 983 n.5 (Pa. Super. 2007) (holding that 

issue not raised in statement of matters complained of on appeal is waived 

for purposes of appeal)).7

____________________________________________

5

 As noted supra note 2, the original petition dated February 20, 2013, 

apparently was incomplete, and Zurich filed it again on March 18, 2013.

6

 While we agree with Zurich that Appellants’ failure to file a TPSA with the 

employer and the employer’s workers’ compensation insurer is additional 

evidence of the pendency of the litigation, we cannot verify this contention in 

the instant record.

7

 Even if not waived, we would reject the claim. The single case cited by 

Appellants relates to the denial, not grant, of a petition to intervene. As 

noted by Zurich, the standard in cases involving a claim that intervention 

should not have been permitted requires a showing that the party opposing 

intervention was prejudiced. See Moyer v. Gudknecht, 67 A.3d 71, 79 

(Footnote Continued Next Page)
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Finally, Appellants contend they “were never served with the Petition 

to Intervene[,] and the Petition did not contain a pleading endorsed with a 

notice [to] plead under Pa.R.C.P. 2328.” Appellants’ Brief at 15. As noted 

by the trial court, this claim was never presented to the trial court and is 

waived. Issues not raised in the trial court cannot be raised for the first time 

on appeal. Pa.R.A.P. 302; In re F.C. III, 2 A.3d 1201, 1211–1212 (Pa. 

2010); Bednarek v. Velazquez, 830 A.2d 1267 (Pa. Super. 2003).

Despite waiver, the trial court additionally noted that the record does 

not support Appellants’ contention. In support, the trial court noted as 

follows:

The record established the following:

1. Petition to Intervene—Zurich’s counsel filed a 

Certificate of Service dated February 19, 2013, 

certifying that he served the Petition to Intervene 

“by first class US mail and electronic mail” upon 

counsel of record, including Plaintiffs’ attorney, 

Raymond J. Quaglia, Esquire, Raymond J. Quaglia, 

P.C., 1313 Race Street, Philadelphia, PA 19107. 

Plaintiffs filed a response on May 13, 2013 opposing 

Zurich’s Petition to intervene.

2. Petition to Compel Satisfaction of Workers’ 

Compensation Lien Directed to Plaintiff Denice 

(Footnote Continued) _______________________

(Pa. Cmwlth. 2013) (stating allowance of party to intervene is ground for 

reversal “only if the appellant was prejudiced by the intervention.”). See 

generally Commonwealth v. Thomas, 814 A.2d 754, 759 (Pa. Super. 

2002) (“Although our Court is not bound by decisions of the Commonwealth 

Court, we may elect to follow those decisions if we find the rationale of those 

decisions persuasive.”). Appellants herein did not assert to the trial court 

that they were prejudiced by Zurich’s intervention.
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Wicker—Zurich’s counsel filed a Certificate of Service 

dated November 5, 2013 certifying that he served 

the Petition to Compel Satisfaction “by first class US 

mail and electronic mail” upon counsel of record, 

including Plaintiffs’ attorney, Raymond J. Quaglia, 

Esquire, Raymond J. Quaglia, P.C., 1313 Race 

Street, Philadelphia, PA 19107.

3. Rule to Show Cause-Zurich’s counsel filed a 

Certificate of Service dated December 3, 2013 

certifying that he served Rule to Show Cause dated 

November 26, 2013 and returnable December 23, 

2013 and the Petition to Compel certified mail and 

electronic mail to counsel of record including 

Plaintiffs’ attorney, Raymond J. Quaglia, Esquire, 

Raymond J. Quaglia, P.C., 1313 Race Street, 

Philadelphia, PA 19107. Zurich’s counsel attached 

copies of the certified mail return receipt establishing 

that the certified mail was delivered to counsel’s 

office on December 5, 2013.

4. Motion to Make Rule Absolute-Zurich’s counsel 

filed a Certificate of Service dated January 3, 2013 

certifying that he served the Motion by first class 

mail upon counsel of record including Plaintiffs’ 

attorney, Raymond J. Quaglia, Esquire, Raymond J. 

Quaglia, P.C., 1313 Race Street, Philadelphia, PA 

19107. Zurich attached to its motion as Exhibit B a 

copy of its cover letter to the Plaintiffs’ counsel dated 

December 3, 2013, with the United States Postal 

Service tracking number attached; a copy of the 

signed, returned certified mail receipt, with the same 

tracking number as the cover letter; and a copy of 

an e-mail sent from Zurich’s counsel to the Plaintiffs’ 

counsel dated December 3, 2013, 1:35 p.m., with 

the rule to show cause order and related documents 

attached in portable document format (“PDF”).

Clearly, all of the above documents were served in 

conformity with the Rules of Civil Procedure, Rule 205.4(g)(1) 

and Rule 440. A properly posted pleading raises a presumption 

that it has been received in due course of mail by the addressee. 

Wheeler v. Red Rose Transit Auth., 890 A.2d 1228, 1231 

(Pa. Cmwith. 2006); Franklin Interiors, Inc. v. Browns Lane, 
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Inc., 323 A.2d 226 (Pa. Super. 1974). Counsel’s representation 

to the contrary is not sufficient to rebut the presumption that the 

Petitions and Rules were received. Wheeler v. Red Rose 

Transit Authority, supra; DeVeaux by DeVeaux v. Palmer, 

558 A.2d 166 (Pa. Cmwlth. 1989). Plaintiffs’ claims regarding 

lack of service are therefore without merit.

Trial Court Opinion, 4/25/14, at 4–5. Therefore, even if this issue had been 

preserved, we would conclude that it lacked merit based upon the trial 

court’s discussion above.

Thus, Appellants’ argument that the trial court’s order granting 

Zurich’s Petition to Intervene was an abuse of discretion is without merit. 

The February 28, 2014 order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015