[J-92-2014] 

IN THE SUPREME COURT OF PENNSYLVANIA 

WESTERN DISTRICT 

LIBERTY MUTUAL INSURANCE 

COMPANY, AS SUBROGEE OF 

GEORGE LAWRENCE, 

Appellant 

v. 

DOMTAR PAPER CO., 

Appellee 

COMMERCIAL NET LEASE REALTY 

SERVICES, INC., AND COMMERCIAL 

NET LEASE REALTY TRUST, AND 

COMMERCIAL NET LEASE REALTY, 

INC., AND NATIONAL RETAIL 

PROPERTIES, INC., AND NATIONAL 

RETAIL PROPERTIES TRUST, 

Appellees 

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

: 

No. 19 WAP 2014 

Appeal from the Order of the Superior 

Court entered September 27, 2013 at 

No. 1052 WDA 2012 affirming the Order 

of the Court of Common Pleas of Elk 

County, entered May 22, 2012 at No. 

C.P. 2011-485. 

ARGUED: October 8, 2014 

DISSENTING OPINION 

MR. CHIEF JUSTICE SAYLOR DECIDED: APRIL 27, 2015

I would find that the caption as stated effectively makes the injured employee the 

use plaintiff. Accordingly, I respectfully dissent. 

The majority notes that a workers’ compensation insurance carrier has no right to 

bring suit against a third-party tortfeasor in its own name primarily because actions 

arising from tortious conduct are unitary and may not be divided. See Majority Opinion, 

slip op. at 16-17. To my mind, these observations are not particularly controversial, 

having been established in this jurisdiction for many years. See, e.g., Spinelli v. 
[J-92-2014][M.O. – Baer, J.] - 2 

Maxwell, 430 Pa. 478, 481, 243 A.2d 425, 427 (1968) (reaffirming the single-cause-ofaction rule for injuries arising from one tort); Scalise v. F.M. Venzie & Co., 301 Pa. 315, 

320, 152 A. 90, 92 (1930) (observing, in a workers’ compensation setting, that any civil 

action against the tortfeasor remains invested in the injured employee, albeit the 

employer may bring an action in the employee’s name if the employee opts not to sue). 

Therefore, it seems to me that the more significant question for purposes of this appeal 

is whether the common pleas court properly dismissed the complaint in view of the 

specific wording of the caption. 

In the complaint, the plaintiff was captioned as, “Liberty Mutual Insurance 

Company, as subrogee of George Lawrence, Plaintiff.” Notably, use of the phrase, “as 

subrogee of,” is a particularized means of bringing suit in the name of the use plaintiff. 

As such, there was little danger that the cause of action might be divided since any 

subsequent action brought directly by Mr. Lawrence would have been barred under the 

doctrine of res judicata.

1

 Thus, by denominating itself as the subrogee of the injured 

party, Liberty Mutual filed a complaint of the type endorsed by this Court in Scalise.

2

 

Indeed, Liberty Mutual made this very argument in opposing Dotmar Paper’s preliminary 

objection. See Plaintiff’s Memorandum of Law in Opposition to Defendant’s Preliminary 

 

1

 Some jurisdictions express this principle by observing that a subrogee insurance 

company is in privity with its subrogor. See, e.g., Geico Ins. Co. v. Graham, 14 N.E.3d 

854, 861 (Ind. Ct. App. 2014) (“A subrogee is in privity with its subrogor under the res 

judicata doctrine.” (quoting Ohio Dep’t of Human Servs. v. Kozar, 651 N.E.2d 1039, 

1041 (Ohio Ct. App. 1995))); Travelers Ins. Co. v. Royal Ins. Co., 841 N.E.2d 287, 2006 

WL 223854, *2 (Mass. App. Ct. Jan. 30, 2006) (“The privity of the relevant parties here 

to the original action is undisputed: as subrogee of Peabody, the plaintiff stands in the 

shoes of the subrogor in whose name the original action was brought.” (internal 

quotation marks and brackets omitted)). 

2

 To the degree Mr. Lawrence’s rights might be compromised by Liberty Mutual’s action 

– since Liberty Mutual was only subrogated to the amount it paid Mr. Lawrence – the 

court could have required his joinder as an additional plaintiff. 
[J-92-2014][M.O. – Baer, J.] - 3 

Objections to Plaintiff’s Complaint at 4; see also Brief for Appellant at 28 (renewing the 

argument). In my view, the common pleas court should have credited the argument and 

overruled Dotmar Paper’s preliminary objection. 

Even insofar as one might argue that this Court’s decisional law only specifically 

endorses phraseology along the lines of “for the use of,” “to use of,” or “in the name of,” 

common pleas courts may, in the interests of justice, disregard formal defects that do 

not affect the parties’ substantial rights. See Pa.R.C.P. 126. Presumably, then, the 

court could have – and in my view should have – permitted Liberty Mutual to amend the 

caption’s wording accordingly so that it would not lose its subrogation rights, which this 

Court has described as “absolute.” Winfree v. Phila. Elec. Co., 520 Pa. 392, 394, 554 

A.2d 485, 485 (1989); see also Scalise, 301 Pa. at 320, 152 A. at 92 (“The employer . . .

is not to be denied his right of suit because the employee does not sue, but may 

institute the action in the latter’s name.”). 

Although the majority acknowledges this possibility, it elects to bypass the 

argument primarily on the grounds that the allocatur grant does not encompass it. See

Majority Opinion, slip op. at 17-18 n.7. I note, however, that the question framed for 

review is very broad: “Does Section 319 of the Pennsylvania Workers’ Compensation 

Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured 

employee to subrogate against the tortfeasor?” Liberty Mut. Ins. Co. v. Domtar Paper 

Co., ___ Pa. ___, 92 A.3d 809 (2014) (per curiam). In fact, subrogation by its very 

nature involves stepping into another party’s shoes. See, e.g., Frazier v. WCAB 

(Bayada Nurses, Inc.), 616 Pa. 592, 603, 52 A.3d 241, 248 (2012) (“In subrogation, the 

insurer stands in the shoes of the insured in attempting to recover what is rightfully 

owed to it from a third-party tortfeasor.” (internal quotation marks omitted)); BLACK’S LAW 

DICTIONARY 1654 (10th ed. 2014). Therefore, it is not apparent why reaffirming the 
[J-92-2014][M.O. – Baer, J.] - 4 

established precept that an employer or insurer may only bring an action against a thirdparty tortfeasor in the name of the injured party falls within the question’s scope, but the 

dispositive issue concerning the proper manner of captioning a complaint brought in the 

subrogor’s name falls outside of it. Since the majority does not address the merits of 

the dispositive issue, Liberty Mutual is effectively put out of court as by now the twoyear limitations period has expired.3

Accordingly, I respectfully dissent. 

 

3

 The precept that a party initiating an action in the common pleas court should not be 

placed out of court due to a non-fatal defect in the filing was delineated in this Court’s 

recent decision in Burke ex rel. Burke v. Independence Blue Cross, ___ Pa. ___, 103 

A.3d 1267 (2014). See id. at ___ & n.9; 103 A.3d at 1275-76 & n.9. Although Burke

involved an improvident appeal from a quasi-governmental agency, the same principle 

logically applies to a complaint filed in the common pleas court’s original jurisdiction and 

is consistent with the focus of Rule 126. 

It may also be noted that, in Burke, as here, the issue accepted for review centered on 

the statute in question and did not expressly inquire into the proper judicial response to 

a pleading defect. See Burke ex rel. Burke v. Independence Blue Cross, 620 Pa. 598, 

71 A.3d 249 (2012) (per curiam) (reciting the issue as: “Did the Pennsylvania General 

Assembly intend to deprive families of children with autism of the right to appeal 

insurance denials to court[,] while granting that right to insurance companies?”). Thus, 

Burke is analogous to this matter and I am unable to discern a persuasive reason why 

Liberty Mutual should be treated differently than the plaintiff in Burke.