IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sota Construction Services, Inc. :

and Selective Insurance Company :

of South Carolina, :

Petitioners :

:

v. :

:

Workers’ Compensation Appeal :

Board (Czarnecki, Zawilla d/b/a :

Gorilla Construction, and Uninsured :

Employers Guaranty Fund), : No. 87 C.D. 2019

Respondents : Submitted: September 6, 2019

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION BY 

JUDGE COVEY FILED: December 20, 2019

Sota Construction Services, Inc. (Sota) and Selective Insurance 

Company of South Carolina (collectively, Petitioners) petition this Court for review 

of the Workers’ Compensation (WC) Appeal Board’s (Board) December 27, 2018 

order affirming the WC Judge’s (WCJ) decision granting the Pennsylvania Uninsured 

Employers Guaranty Fund’s (UEGF)1joinder petition against Sota (Joinder Petition).

 

1 UEGF is a separate fund in the state treasury, established in [S]ection 

1602 of the WC Act [of June 2, 1915, P.L. 736, as amended], added 

by the Act of November 9, 2006, P.L. 1362, 77 P.S. § 2702, for the 

exclusive purpose of paying [WC] benefits due to claimants and their 

dependents where the employer liable for the payments was not 

insured at the time of the work injury. Insurers and self-insured 

employers are assessed as necessary to pay claims and the cost of 

administering the fund. Section 1607 of the Act, [added by Section 7 

of the Act of November 9, 2006, P.L. 1362,] 77 P.S. § 2707.
2

Petitioners present five issues for this Court’s review: (1) whether the Board erred by 

reversing the WCJ’s decision dismissing the Joinder Petition pursuant to Section 315 

of the WC Act (Act);2(2) whether the Joinder Petition contained a new cause of

action after the statute of limitations under Section 315 of the Act had expired; (3) 

whether the Board erred by concluding that Section 131.36(d) and (h) of the Board’s 

Regulations3supersedes and subverts the statute of repose set forth in Section 315 of 

the Act; (4) whether the Board exceeded its scope and standard of review by 

improperly engaging in fact-finding and concluding that the Joinder Petition was 

timely pursuant to Section 131.36(d) of the Board’s Regulations; and (5) whether the 

Board should have reversed the WCJ’s decision when the UEGF failed to file an 

appeal within 20 days of the WCJ’s December 9, 2013 decision4 dismissing the 

Joinder Petition. After review, we affirm.

On August 27, 2012, Claimant filed a claim petition alleging multiple 

injuries occurring in the course and scope of his employment with George Zawilla

(Zawilla) d/b/a Gorilla Construction (Gorilla Construction) on October 26, 2009. On 

August 30, 2012, Claimant learned that Gorilla Construction did not carry WC 

insurance. On October 3, 2012, Claimant filed a claim petition for WC benefits from 

UEGF (Claim Petition) containing the same allegations. UEGF filed the Joinder 

Petition, asserting that Sota was the general contractor for the project on which 

Claimant was allegedly injured and was a statutory employer. The WCJ held 

hearings on January 3, June 20, and July 24, 2013 and April 8, 2014.

 

Jackson v. Workers’ Comp. Appeal Bd. (Radnor Sch. Dist. & ACTS Ret. Cmty.), 148 A.3d 939, 944 

n.6 (Pa. Cmwlth. 2016).

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 602 (Barring all claims, “unless, 

within three years after the injury, the parties shall have agreed upon the compensation payable 

under this article; or unless within three years after the injury, one of the parties shall have filed a 

petition . . . .”).

3

34 Pa. Code §§ 131.36(d), (h).

4 The WCJ’s December 9, 2013 decision included the WCJ’s December 4, 2013 order.
3

On July 24, 2013, Sota orally moved to strike the Joinder Petition. On 

December 4, 2013, the WCJ entered an Interlocutory Order granting Sota’s motion to 

strike the Joinder Petition. The WCJ determined that the Joinder Petition was not 

timely because it was not filed within three years of Claimant’s alleged October 26, 

2009 injury in accordance with Section 315 of the Act. On July 1, 2014, the WCJ 

entered an interim Interlocutory Order ruling that Claimant was an employee of 

Gorilla Construction.

On April 13, 2015, the WCJ granted the Claim Petition. The WCJ found 

that Claimant sustained injuries to his back and left leg as a result of his October 26, 

2009 work incident. He also found that Claimant was totally disabled from October 

26, 2009 through March 1, 2010, and awarded indemnity benefits for that time 

period. Further, the WCJ determined that Claimant provided UEGF with timely 

notice of the claim, and dismissed the Joinder Petition as untimely filed. On April 16, 

2015, the WCJ circulated an amended decision attaching his interlocutory orders to 

the decision, and reaffirmed his April 13, 2015 decision. Gorilla Construction and 

UEGF appealed to the Board.

On June 27, 2016, the Board determined that the WCJ erred by 

dismissing the Joinder Petition as untimely. The Board did not agree that Section 315 

of the Act serves as a bar to a joinder petition because Section 131.36(d) of the 

Board’s Regulations provides a deadline for the filing of a joinder petition and

Section 131.36(i) of the Board’s Regulations specifies that, after joinder, the original 

claim petition is deemed to be amended to assert the claimant’s claim against the 

joined party. The Board concluded that the Joinder Petition was timely because the 

Claim Petition was timely filed under Section 315 of the Act and Zawilla testified at 

the June 20, 2013 hearing that, at the time of his injury, Claimant was working for

Gorilla Construction, which was Sota’s subcontractor, and UEGF filed the Joinder 

Petition on July 2, 2013, within 20 days of that hearing. Accordingly, the Board
4

remanded the matter to the WCJ for reconsideration of the Joinder Petition on the 

merits. On November 1, 2017, the WCJ concluded that Sota was a statutory 

employer and granted UEGF’s Joinder Petition. Sota appealed to the Board. On 

December 27, 2018, the Board affirmed the WCJ’s decision. Petitioners appealed to 

this Court.5

Petitioners first argue that the Board erred by reversing the WCJ’s 

decision dismissing the Joinder Petition pursuant to Section 315 of the Act because 

the Joinder Petition was filed eight months beyond the statutory deadline. 

Initially, Section 315 of the Act provides:

In cases of personal injury all claims for compensation 

shall be forever barred, unless, within three years after the 

injury, the parties shall have agreed upon the compensation 

payable under this article; or unless within three years 

after the injury, one of the parties shall have filed a 

petition as provided in article four hereof.

77 P.S. § 602 (bold and italic emphasis added). Section 131.36(d) of the Board’s 

Regulations requires: 

The petition for joinder form shall be filed with the 

Department [of Labor and Industry (Department)] no later 

than 20 days after the first hearing at which evidence is 

received regarding the reason for which joinder is sought, 

unless the time is extended by the [WCJ] for good cause 

shown.

34 Pa. Code § 131.36(d). Section 131.36(h) of the Board’s Regulations mandates:

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 

 

5

“On review[,] this Court must determine whether constitutional rights were violated, errors 

of law were committed, or necessary findings of fact were supported by substantial competent 

evidence.” Stepp v. Workers’ Comp. Appeal Bd. (FairPoint Commc’ns, Inc.), 99 A.3d 598, 601 n.6 

(Pa. Cmwlth. 2014). 
5

party as the judge orders. The additional defendant shall 

have the same rights and responsibilities under this chapter 

as the original defendant.

34 Pa. Code § 131.36(h). 

Petitioners argue that Section 315 of the Act is strictly a statute of 

repose that completely extinguishes a claimant’s rights created by the Act. 

Petitioners further claim that this Court has construed Section 315 of the Act as 

barring petitions to join additional defendants and cite to Viwinco v. Workmen’s

Compensation Appeal Board (Horner), 656 A.2d 566 (Pa. Cmwlth. 1995), and CRL 

of Maryland, Inc. v. Workmen’s Compensation Appeal Board (Hopkins), 627 A.2d 

1238 (Pa. Cmwlth. 1993), to support their position. UEGF and Gorilla Construction 

rejoin that, because UEGF filed the Joinder Petition within the time limit established 

in the Board’s Regulations, it was timely filed. The issue of whether a joinder 

petition must be filed within the three-year statute of limitations is an issue of first 

impression. 

In Viwinco, the claimant filed a claim petition on March 31, 1992, 

alleging that he sustained a work-related injury or an aggravation of a pre-existing 

condition to his left knee on September 4, 1991. The employer filed a petition to join 

Cigna as an additional defendant, wherein employer alleged that the claimant’s 

March 1, 1989 injury, which occurred during the period of Cigna’s insurance 

coverage, was the cause of the September 4, 1991 injury. However, because the 

claimant’s claim for his 1989 injury was time-barred under Section 315 of the Act, 

the Viwinco Court concluded the referee6erred by granting the joinder petition. 

Similarly, the CRL Court determined that a joinder petition was not timely because 

the underlying claim petition was not timely.7 In both cases, the joinder petition was 

 

6 Prior to the 1996 amendments to the Act, WCJ’s were referred to as referees.

7 CRL is further distinguishable because it involved the three-year time limitation contained 

in Section 434 of the Act, added by Section 6 of the Act of June 26, 1919, P.L. 642, as amended, 
6

untimely because Section 315 of the Act barred the claimant’s underlying claim. 

Accordingly, both cases are inapposite.

Here, it is undisputed that Claimant filed the Claim Petition within the 

three-year time limit set forth in Section 315 of the Act. Because “one of the parties” 

“filed a petition” “within three years after the injury,” Claimant’s claim is viable. 77 

P.S. § 602. Thus, UEGF had “20 days after the first hearing at which evidence [was]

received regarding the reason for which joinder is sought” to file the Joinder Petition. 

34 Pa. Code § 131.36(d). Zawilla testified on June 20, 2013 that the job on which 

Claimant was working when he was injured was a subcontracting job, with Gorilla 

Construction acting as Sota’s subcontractor, see Reproduced Record (R.R.) at 429a,

and UEGF filed the Joinder Petition on July 2, 2013. See R.R. at 20a. Accordingly, 

“the [Claim Petition] shall be deemed amended to assert a claim of [] [C]laimant 

against [Sota].” 34 Pa. Code § 131.36(h). 

Moreover, under Petitioners’ rationale, a claimant could file a claim 

petition against UEGF on the last day of his three-year time limit to preclude UEGF 

from joining any additional defendants. Considering that UEGF would not have 

knowledge of the injury before the claim petition was filed, and it would be 

effectively precluded from joining the additional parties thereafter, UEGF would 

have no recourse against the putative liable parties. In ascertaining the General 

Assembly’s intent in enacting a statute, it is presumed “[t]hat the General Assembly 

does not intend a result that is absurd[.]” Section 1922(1) of the Statutory 

Construction Act of 1972, 1 Pa.C.S. § 1922(1). Interpreting the Act in a manner that 

would permit a claimant to preclude UEGF from joining additional defendants would

yield an unreasonable and absurd result. Consequently, this Court concludes that 

Section 315 of the Act did not bar the Joinder Petition.

 

77 P.S. § 1001 (relating to an employer’s liability to pay compensation under a compensation 

agreement notice or award), not Section 315 of the Act.
7

Petitioners next assert that the Board erred by allowing an amendment of 

the Claim Petition because the amendment contains a new cause of action. 

Specifically, Petitioners contend that a claim petition may not be amended to create a 

new cause of action after the statute of limitations under Section 315 of the Act has 

passed. Petitioners cite Mangine v. Workmen’s Compensation Appeal Board 

(Consolidated Coal Co.), 487 A.2d 1040 (Pa. Cmwlth. 1985),

8

and Zafran v. 

Workers’ Compensation Appeal Board (Empire Kosher Poultry, Inc.), 713 A.2d 698 

(Pa. Cmwlth. 1998), to support their position.

In Mangine, the claimant filed a claim petition on November 21, 1980 

alleging total disability due to pneumoconiosis and/or anthracosilicosis (commonly 

known as black lung disease) contracted in the 43 years he worked as a coal miner. 

At a hearing on September 22, 1982, the claimant orally moved to amend his claim 

petition to assert that his disability resulted from a heart attack suffered at work on 

November 22, 1977. The referee denied the motion to amend. This Court concluded 

that because the claimant was proceeding under an entirely different theory of 

recovery, the claimant’s claim based upon a heart attack alleged to have occurred on 

November 22, 1977 was time-barred. 

The Zafran Court dismissed a widow’s fatal claim petition filed more 

than three years after her husband’s death, notwithstanding that decedent’s claim 

petition was filed before his death, because it was time-barred by Section 315 of the 

Act. The Court recognized that “[a] widow [] has an independent claim to 

compensation, ‘but only if she files her claim within the statutory period after her 

husband’s death.’” Zafran, 713 A.2d at 700 (quoting Auto Serv. Councils of Pa., Inc. 

v. Workmen’s Comp. Appeal Bd. (Compton), 590 A.2d 1355, 1359 (Pa. Cmwlth.

1991)). Because the widow’s claim was independent of her husband’s claim, the 

 

8 Mangine was overruled on other grounds by FMC Corp. v. Workmen’s Compensation 

Appeal Board (Wadatz), 542 A.2d 616 (Pa. Cmwlth. 1988).
8

recovery theory could be different, i.e., husband’s claim was based on his injury and 

wife’s claim was based on his death. 

Here, because the amendment to the Claim Petition does not change 

Claimant’s theory of recovery, i.e., he suffered multiple injuries occurring in the 

course and scope of his employment on October 26, 2009, the amendment did not 

contain a new cause of action. Therefore, Mangine and Zafran are inapposite. 

Accordingly, this Court concludes the amendment was not time-barred by Section 

315 of the Act.

Petitioners further argue that the Board erred by concluding that Section 

131.36(d) and (h) of the Board’s Regulations supersedes and subverts the statute of 

repose set forth in Section 315 of the Act. Specifically, Petitioners contend that an 

administrative agency’s regulations cannot conflict with the statutory intention.

The law is well established that “[r]egulations promulgated by an 

administrative agency pursuant to a statutory directive are invalid if they are contrary 

to the legislative intent of statutory provisions to which they relate.” Stanish v. 

Workers’ Comp. Appeal Bd. (James J. Anderson Constr. Co.), 11 A.3d 569, 575 (Pa. 

Cmwlth. 2010). However, contrary to Petitioners’ contention, there is no conflict 

between Section 315 of the Act and Section 131.36(d) and (h) of the Board’s 

Regulations. Section 315 of the Act requires one of the parties to file a claim within 

three years of the injury, and Section 131.36(d) and (h) of the Board’s Regulations

specifies the timing of joinder after such a claim is filed. Here, because the Claim 

Petition was filed within three years of Claimant’s alleged injury, the Joinder Petition 

was not barred by Section 315 of the Act, and thus the Board’s Regulations 

controlled the timing thereof. Accordingly, the Board properly applied Section 

131.36(d) and (h) of the Board’s Regulations. 

Petitioners also maintain that the Board exceeded its scope and standard 

of review by improperly engaging in fact-finding and concluding that the Joinder 
9

Petition was timely pursuant to Section 131.36(d) of the Board’s Regulations, when 

the WCJ did not address the timeliness of the Joinder Petition pursuant to Section 

131.36(d) of the Board’s Regulations or make any finding of fact or conclusion of 

law concerning the same. 

This Court has held that “the WCJ [is] the ultimate fact finder, but [] the 

Board can ‘consider whether any conclusion reached by the [WCJ] constitutes an 

error of law.’” Habib v. Workers’ Comp. Appeal Bd. (John Roth Paving 

Pavemasters), 29 A.3d 409, 412 (Pa. Cmwlth. 2011) (quoting Universal Cyclops 

Steel Corp. v. Workmen’s Comp. Appeal Bd. (Krawczynski), 305 A.2d 757, 761 (Pa. 

Cmwlth. 1973)). Here, on December 9, 2013, the WCJ entered an Interlocutory 

Order granting Sota’s motion to strike the Joinder Petition. The Interlocutory Order 

contained one sentence relevant thereto: “Section 315 of the Act . . . requires a party 

to initiate the claim within three years of the accident. Here, the accident was on 

October 26, 2009. The [Joinder Petition] was not filed until July 2, 2013.” R.R. at 

71a. The WCJ referenced this determination in Finding of Fact 5 of his April 13, 

2015 decision, wherein he stated:

During the pendency of the case, the [UEGF] joined an 

entity, [Sota] the general contractor on the job upon which 

[Claimant] was working. [The WCJ] dismissed the claim 

because of expiration of the three[-]year statute of 

limitations on original claims. The [J]oinder [Petition] was 

dismissed in an [I]nterlocutory [O]rder [dated December 4, 

2013 in the Decision dated] December 9, 2013.

R.R. at 236a. However, the WCJ also stated in Conclusion of Law 4 of his April 13, 

2015 decision: “The Joinder [Petition] against [Sota] was untimely.” R.R. at 239a.9

Notwithstanding that the WCJ referenced it in a finding of fact, the 

determination that Section 315 of the Act barred the Joinder Petition is clearly a 

 

9 The WCJ incorporated his Interlocutory Order dated December 4, 2013 into his April 13, 

2015 decision in Conclusion of Law 5. See R.R. at 78a.
10

conclusion of law. As such, the Board was permitted to consider whether it 

“constitute[d] an error of law.” Habib, 29 A.3d at 412. Further, because the WCJ 

concluded that the Joinder Petition was untimely, and Section 131.36(d) of the 

Board’s Regulations pertains to the time limit for filing a joinder petition, the Board 

was well within its purview to consider it. Accordingly, the Board did not exceed its 

scope and standard of review by concluding that the Joinder Petition was timely filed 

pursuant to Section 131.36(d) of the Board’s Regulations.

Finally, Petitioners argue that the Board should not have reversed the 

WCJ’s decision because the UEGF failed to file an appeal within 20 days of the 

WCJ’s December 9, 2013 decision dismissing the Joinder Petition. 

Section 423 of the Act requires an appeal be filed “within twenty days 

after notice of a [WCJ’s] adjudication.” 77 P.S. § 853. This Court acknowledges that 

generally, “an order of a WCJ striking a joinder petition constitutes a final, 

appealable order, because the order disposes entirely of the issues set forth in the 

joinder petition.” Dep’t of Labor & Indus., Uninsured Emp’rs Guar. Fund v. 

Workers’ Comp. Appeal Bd. (Gerretz, Reliable Wagon & Auto Body, Inc.), 142 A.3d 

148, 154 (Pa. Cmwlth. 2016). However, the Interlocutory Order in the instant case 

contained the following admonishment:

This interim order is not subject to appeal by [C]laimant or 

[] UEGF. A WCJ order striking a joinder petition is 

interlocutory in nature. According to the [] Board, an order 

‘striking a joinder petition under . . . [S]ection 131.36 [of 

the Board’s Regulations] is an interlocutory order not 

subject to appeal until a final decision is entered on the 

merits of the underlying petition. See Travelers Ins. Co. v. 

Workmen’s Comp[.] Appeal Bd. (Minoske), . . . 409 A.2d 

514 ([Pa. Cmwlth.] 1980). . . .’ The Board added, ‘Minoske 

adopted the civil practice rule that an order permitting 

joinder is interlocutory and generally unappealable. This 

rule also extends to orders denying joinder.’ Podolak v. MK 

Rail, Workers’ Compensation Appeal Board No. A01-3498 

(filed September 26, 2002).
11

. . . .

This Interlocutory Order is not subject to appeal.

This Order remains in effect until modified by further order 

or until a final order is issued in this matter.

R.R. at 71a (emphasis in original). Faced with virtually identical language in a WCJ 

order striking a joinder petition, this Court in Gerretz opined:

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 [WC] 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, [UEGF] must be given an opportunity to establish 

that a breakdown in the administrative process occurred 

such that the Board should have considered [UEGF’s] 

appeal nunc pro tunc.

Gerretz, 142 A.3d at 155-56.

Here, in addition to including the prohibitory language in the 

Interlocutory Order, the WCJ included the determination in his April 13, 2015 

decision, see R.R. at 79a, and attached the Interlocutory Order to his April 16, 2015 

Amended Decision. See R.R. at 81a-87a. Moreover, the Board did not question the 

appealability of the Interlocutory Order, but rather, addressed it and remanded the 

matter to the WCJ to “reconsider the merits of the [] Joinder Petition.” R.R. at 154a.

Under the circumstances presented herein, this Court concludes the 

Board properly addressed Petitioners’ appeal of the Interlocutory Order. 

Accordingly, the Interlocutory Order is properly before this Court.
12

For all of the above reasons, the Board’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sota Construction Services, Inc. :

and Selective Insurance Company :

of South Carolina, :

Petitioners :

:

v. :

:

Workers’ Compensation Appeal :

Board (Czarnecki, Zawilla d/b/a :

Gorilla Construction, and Uninsured :

Employers Guaranty Fund), : No. 87 C.D. 2019

Respondents :

O R D E R

AND NOW, this 20th day of December, 2019, the Workers’ 

Compensation Appeal Board’s December 27, 2018 order is affirmed.

___________________________

ANNE E. COVEY, Judge