[J-4-2018]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

THE HARTFORD INSURANCE GROUP 

ON BEHALF OF CHUNLI CHEN,

Appellee

v.

KAFUMBA KAMARA, THRIFTY CAR 

RENTAL AND RENTAL CAR FINANCE 

GROUP,

Appellants

:

:

:

:

:

:

:

:

:

:

:

:

:

:

No. 24 EAP 2017

Appeal from the Judgment of Superior 

Court entered on February 10, 2017 at 

No. 976 EDA 2016 (reargument

denied April 18, 2017) vacating and 

remanding the Order dated February 

25, 2016 in the Court of Common 

Pleas, Philadelphia County, Civil 

Division, at No. 1534 September 

Term 2015.

ARGUED: March 6, 2018

OPINION

JUSTICE BAER DECIDED: November 21, 2018

This appeal presents the issue of whether a workers’ compensation insurance 

carrier may bring a third-party action against an alleged tortfeasor on behalf of an injured 

employee to recoup the amount paid in workers’ compensation benefits where the 

employee did not independently sue the tortfeasor, did not join in the insurer’s action, and 

did not assign her cause of action to the insurer. Reaffirming the well-settled proposition 

that the right of action against the tortfeasor remains in the injured employee, we hold 

that, unless the injured employee assigns her cause of action or voluntarily joins the 

litigation as a party plaintiff, the insurer may not enforce its statutory right to subrogation 

by filing an action directly against the tortfeasor. Accordingly, we vacate the judgment of 

the Superior Court and reinstate the order of the trial court, which sustained the 
[J-4-2018] - 2

preliminary objections filed by the tortfeasor and dismissed the insurer’s complaint with 

prejudice.

On October 10, 2013, Chunli Chen was standing in the parking lot of Thrifty Rental 

Car when she was struck by a rental vehicle operated by Kafumba Kamara. Appellee’s 

Complaint, Dec. 8, 2015, at ¶ 8.1 As a result, Chen sustained injuries to her head, back, 

and neck. Id. When the accident occurred, Chen was in the course of her employment 

with Reliance Sourcing, Inc., which maintained workers’ compensation coverage through 

The Hartford Insurance Group (“Appellee” or “Insurer”). Id. at ¶ ¶ 7, 8. As a result of the 

accident, Insurer had paid $59,424.71 in medical and wage benefits to Chen pursuant to 

her employer’s workers’ compensation insurance policy. Id. at ¶ 9. Chen did not seek to 

recover damages for her injuries by filing an action against Kamara and/or Thrifty Rental 

Car (collectively referred to herein as “Appellants” or “Tortfeasors”) and did not assign her 

cause of action against Tortfeasors to Insurer. 

On September 15, 2015, when the two-year statute of limitations was about to 

expire on Chen’s cause of action, Insurer sought to effectuate its subrogation right under 

Section 319 of the Workers’ Compensation Act (“WCA”),

2 77 P.S. §671, by filing a 

praecipe for a writ of summons against Tortfeasors.

3

 In its subsequently filed complaint, 

 

1 As explained infra, the facts set forth herein are based upon the assertions set forth in 

the civil complaint filed by Appellee, The Hartford Insurance Group. Because this appeal 

emanates from an order sustaining preliminary objections in the nature of a demurrer, we 

accept as true the material facts set forth in the complaint along with any reasonable 

inferences therefrom. Lord Corp. v. Pollard, 695 A.2d 767, 768 (Pa. 1997).

2 Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.1, 2501-2708.

3 Section 319 of the Workers’ Compensation Act (“WCA”) provides, in relevant part:

Where the compensable injury is caused in whole or in part by the act or 

omission of a third party, the employer shall be subrogated to the right of 

the employe, his personal representative, his estate or his dependents, 

against such third party to the extent of the compensation payable under 
[J-4-2018] - 3

Insurer captioned the plaintiff as “The Hartford Group on behalf of Chunli Chen.”

Appellee’s Complaint, at Caption. The complaint contained two negligence counts, which 

asserted that each of the defendants were liable to Insurer and to Chen for injuries the 

defendants caused to Chen. The complaint was not verified by Chen, but rather by “Jaime 

Young[;] Workers Compensation Subrogation Specialist[;] The Hartford.” Id., at 

Verification. The verification stated that the averments and allegations of fact made in 

the civil complaint “are true and correct to the best of [Young’s] information and belief.” 

Id.

Tortfeasors filed preliminary objections to Insurer’s complaint in the nature of a 

demurrer, claiming that the complaint should be dismissed on two grounds. First, 

Tortfeasors alleged that Insurer’s attempt to enforce its subrogation rights in an action 

filed directly against the alleged third-party tortfeasors was prohibited by this Court’s 

decision in Liberty Mutual Insurance Co. v. Domtar Paper Co. (“Domtar Paper”), 113 A.3d 

1230 (Pa. 2015), which reaffirmed that “the right of action against a third-party tortfeasor 

under Section 319 of the WCA remains in the injured employee, and that the 

employer[’s]/insurer’s right of subrogation under Section 319 must be achieved through 

 

this article by the employer; reasonable attorney’s fees and other proper 

disbursements incurred in obtaining a recovery or in effecting a compromise 

settlement shall be prorated between the employer and employe, his 

personal representative, his estate or his dependents. The employer shall 

pay that proportion of the attorney’s fees and other proper disbursements 

that the amount of compensation paid or payable at the time of recovery or 

settlement bears to the total recovery or settlement. Any recovery against 

such third person in excess of the compensation theretofore paid by the 

employer shall be paid forthwith to the employe, his personal 

representative, his estate or his dependents, and shall be treated as an 

advance payment by the employer on account of any future instalments of 

compensation.

77 P.S. § 671.
[J-4-2018] - 4

a single action brought in the name of the injured employee or joined by the injured 

employee.”4 Id. at 1240. Because Chen was not a party to Insurer’s action, Tortfeasors 

alleged that Insurer had no independent ability to commence a subrogation claim directly 

against them. Second, Tortfeasors posited that the complaint must be stricken for 

noncompliance with Pa.R.C.P. 1024(c) because the verification was not signed by Chen 

but, rather, a representative of Insurer who was not present at the accident scene and

had no first-hand knowledge of the accident from which to plead the facts alleged in 

Insurer’s complaint.5

In response to the preliminary objections, Insurer contended that it complied with 

Domtar Paper’s requirement that the action against the tortfeasor be brought “in the name 

of the injured employee” because it captioned its complaint as being filed “on behalf of”

Chen, rather than as “the subrogee” of Chen, which Domtar Paper precluded. Insurer 

also posited that the verification by Insurer’s workers’ compensation subrogation 

specialist, Jaime Young, was proper even though Young was not present at the scene of 

the accident because she had knowledge of the facts contained in the complaint through 

her work on Chen’s workers’ compensation claim. Insurer emphasized that Pa.R.C.P. 

 

4

 As discussed in detail infra, this Court in Domtar Paper rejected an insurer’s attempt to 

enforce its subrogation rights through an action it filed directly against the alleged thirdparty tortfeasor “as subrogee” of the injured employee.

5 Pa.R.C.P. 1024(c) states:

The verification shall be made by one or more of the parties filing the 

pleading unless all the parties (1) lack sufficient knowledge or information, 

or (2) are outside the jurisdiction of the court and the verification of none of 

them can be obtained within the time allowed for filing the pleading. In such 

cases, the verification may be made by any person having sufficient 

knowledge or information and belief and shall set forth the source of the

person's information as to matters not stated upon his or her own knowledge 

and the reason why the verification is not made by a party.
[J-4-2018] - 5

1024(a) permits verification on personal knowledge or information and belief, and that its 

verification was based on the latter.

On February 25, 2016, the trial court issued an order sustaining both of 

Tortfeasors’ preliminary objections and dismissing Insurer’s complaint with prejudice. In 

its opinion dated June 23, 2016, the trial court relied upon Whirley Indus., Inc. v. Segel, 

462 A.2d 800 (Pa. Super. 1983), for the proposition that “actions against a third-party 

tortfeasor must be brought by the injured employee; the workers’ compensation insurance 

carrier has no independent cause of action against the tortfeasor under Section 319 of 

the Workers’ Compensation Act.” Trial Court Opinion, Jun. 23, 2016, at 4. The trial court 

interpreted this Court’s decision in Domtar Paper as reaffirming that principle. Id. at 4-5. 

Accordingly, the trial court concluded that, absent Chen filing a complaint against 

Tortfeasors, Insurer lacked a legally cognizable cause of action against them in its own

name or on behalf of Chen. Id. at 5. The trial court further held that Insurer’s verification 

failed to comply with Pa.R.C.P. 1024 because Young had no first-hand knowledge of 

Chen’s accident and the complaint did not state the source of Young’s information. Id. at 

6. Finally, the trial court noted that because Insurer failed to assert a legally cognizable 

cause of action against Tortfeasors, granting Insurer leave to attach a sufficient 

verification would have been futile. Id.

The Superior Court subsequently vacated the trial court’s order and remanded the 

matter for further proceedings, finding that the trial court erred in sustaining Tortfeasors’ 

preliminary objections and dismissing Insurer’s complaint. Hartford Ins. Group ex rel. 

Chen v. Kamara, 155 A.3d 1108 (Pa. Super. 2017). First, the Superior Court held that 

Insurer’s action was not precluded by this Court’s decision in Domtar Paper because

Insurer was not pursuing a subrogation claim directly against the third-party tortfeasors,
[J-4-2018] - 6

as was the case in Domtar Paper, but, rather, Insurers filed an action to establish the 

liability of Tortfeasors to Chen. Id. at 1111. 

The intermediate appellate court found it well-settled that the right to sue a thirdparty tortfeasor remains in the injured employee and the employer’s/insurer’s right of 

subrogation under Section 319 of the WCA must be achieved through a single action 

brought in the name of the injured employee or joined by the injured employee. Id. at 

1112 (citing Domtar Paper, 113 A.3d at 1240; Scalise v. F.M. Venzie & Co., 152 A. 90, 

92 (Pa. 1930) (stating that an employer “is not to be denied his right of suit because the 

employee does not sue, but may institute an action in the latter’s name”); Moltz v. 

Sherwood Bros., 176 A. 842, 843 (Pa. Super. 1935) (providing that “[t]he employer’s right 

of subrogation must be worked out through an action brought in the name of the injured 

employee, either by joining the employer as a party plaintiff or as a use plaintiff”) (citations 

omitted); and Reliance Ins. Co. v. Richmond Mach. Co., 455 A.2d 686, 690 (Pa. Super. 

1983) (holding that Section 319 does not provide the employer/insurer with a cause of 

action against a third party in its own right; rather, the employer/insurer “must proceed in 

an action brought on behalf of the injured employee in order to determine the liability of 

the third party to the employee”)). 

Notably, the Superior Court found that Insurer complied with this jurisprudence 

requiring the insurer to bring an action “in the name of” the injured employee by filing its 

action “on behalf of” Chen. Hartford Ins. Group ex rel. Chen, 155 A.3d at 1113. The court 

emphasized that Insurer was not attempting to “split” Chen’s cause of action as it sought 

the full amount of recovery due to Chen and not merely the amount representing its 

subrogation interest. Thus, the Superior Court concluded that Insurer’s complaint 

comported with the procedure sanctioned by Domtar Paper to enforce an insurer’s

Section 319 subrogation right. Id.
[J-4-2018] - 7

The Superior Court further held that the verification of the complaint by Young, 

Insurer’s workers’ compensation subrogation specialist, was proper because Insurer is a 

party to the action, as it filed the suit on Chen’s behalf after Chen declined to sue, and, 

concomitantly, Insurer has a real interest in the lawsuit due to its statutory subrogation 

right to Chen’s recovery against Tortfeasors. Id. at 1115. Highlighting Young’s averment

that the assertions in the complaint were “true and correct to the best of [her] information 

and belief,” Appellee’s Complaint, at Verification, the intermediate appellate court found 

the verification proper even absent Young having first-hand knowledge of the accident. 

Id. 

We granted allowance of appeal to examine whether our decision in Domtar Paper

permits a workers’ compensation insurance carrier to enforce its subrogation rights under 

Section 319 of the WCA by filing an action against the alleged third-party tortfeasors “on 

behalf of” the injured employee when that employee has not assigned her cause of action 

or voluntarily joined the litigation as a party plaintiff. In the event such action is deemed 

valid, we granted review to determine the propriety of the workers’ compensation 

insurance carrier’s verification of its complaint by a company representative, rather than

by the injured employee. These issues present questions of law, thus, our standard of

review is de novo and our scope of review is plenary. Sernovitz v. Dershaw, 127 A.3d 

783, 788 (Pa. 2015).6

The arguments set forth in the parties’ appellate briefs filed in this Court mirror the 

positions they asserted below. To reiterate, Tortfeasors, as appellants, contend that the 

Superior Court’s decision sanctioning Insurer’s direct action against them conflicts with 

 

6 Similarly, we exercise de novo review of a lower tribunal’s order sustaining preliminary 

objections in the nature of a demurrer. Bruno v. Erie Ins. Co., 106 A.3d 48, 56 (2014). A 

demurrer should only be sustained if, on the facts averred, the law says with certainty that 

no recovery is possible. Shafer Electric & Constr. v. Mantia, 96 A.3d 989, 984 (Pa. 2014).
[J-4-2018] - 8

Domtar Paper’s reaffirmation that the right of action against a third-party tortfeasor under 

Section 319 of the WCA remains in the injured employee. They argue that while Section 

319 grants an employer/insurer the right to subrogate against any settlement received by 

the injured employee from the alleged third-party tortfeasor, it does not grant the insurer 

the independent right to sue the third-party tortfeasor directly unless the employee is a 

party to the action. See Brief for Appellants at 16 (citing Whirley Industries, Inc., 462 A.2d 

at 802 (recognizing that an action against the third-party tortfeasor must be brought by 

the injured employee and the employer’s carrier is subrogated to the employee’s claim; 

the workers’ compensation insurance carrier has no independent cause of action for 

indemnification by and contribution from the negligent party who caused the insurance 

carrier to pay out benefits)).

Tortfeasors submit that the instant matter is governed by Domtar Paper, as both 

cases involved a subrogation action by the insurer against the alleged third-party 

tortfeasor without the involvement of the injured employee. They emphasize that as in 

Domtar Paper, the injured employee here did not assign her cause of action to Insurer, 

did not join in Insurer’s action, and did not sue Tortfeasors independently. Thus, 

Tortfeasors contend, merely captioning the complaint as “on behalf of” the injured 

employee, rather than “as subrogee of” the injured employee, has no legal significance

because such action offers no protection to the injured worker’s independent claims. 

According to Tortfeasors, the intent of the Court in Domtar Paper was to require workers’ 

compensation carriers to join the injured employee in the single action against the alleged 

third-party tortfeasor to preserve the employee’s independent claims for pain and 

suffering as well as to provide for enforcement of the insurer’s subrogation rights.

Regarding the second issue challenging the propriety of Insurer’s verification of its

complaint, Tortfeasors reiterate that the verification by Insurer’s workers’ compensation 
[J-4-2018] - 9

specialist fails to comport with Pa.R.C.P. 1024(c) because it does not set forth the source 

of Young’s information as to the matters alleged in the complaint. See Pa.R.C.P. 1024(c) 

(providing that “the verification may be made by any person having sufficient knowledge 

or information and belief and shall set forth the source of the person’s information as to 

matters not stated upon his or her own knowledge and the reason why the verification is 

not made by the party”). They argue that absent first-hand knowledge of the accident, 

Young could not verify any assertions relating to Chen’s claims against them. In 

Tortfeasor’s view, the verification of Insurer’s complaint by Young illustrates that this 

action is nothing more than an improper subrogation action filed directly against them by 

Insurer. Finally, they reject any suggestion that the trial court should have offered Insurer 

an opportunity to cure the defective verification as Insurer would have been unable to do 

so considering Chen’s non-party status.

The Pennsylvania Association for Justice (“PAJ”) has filed an amicus brief in 

support of Tortfeasors, contending that Tortfeasors’ litigation posture in this case is 

aligned with protecting the interests of injured workers. Therein, the PAJ reiterates the 

arguments set forth by Tortfeasors and opines that the trial court properly dismissed 

Insurer’s complaint because a workers’ compensation insurance carrier should never be 

permitted to sue the alleged third-party tortfeasor directly without the joinder of the injured 

employee. To do so, the PAJ asserts, would be detrimental to the employee’s interests 

because the insurer is faced with an insurmountable conflict of interest as it has no 

incentive to expend time and resources to prosecute vigorously the injured employee’s 

independent claims for pain and suffering because it will receive no benefit from such 

effort. 

Further, the PAJ posits, an injured employee’s independent claims will be 

precluded if the insurer files its subrogation claim quickly without the employee’s 
[J-4-2018] - 10

involvement and settles the action before the employee determines whether to pursue an 

independent third-party suit. The PAJ asserts that whether the claim is brought by Insurer 

“as subrogee” of the injured employee or “on behalf of” the injured employee, the result 

is the same, i.e., the employee whose claim is being asserted is not the entity bringing 

the action and is not the party who will benefit from such action.7 Accordingly, the PAJ 

urges this Court to reverse the Superior Court’s judgment and reinstate the trial court’s 

dismissal of Insurer’s action.

In response, Insurer contends that the Superior Court was correct in concluding 

that it complied with Domtar Paper and the cases relied upon therein when it filed a single

action “on behalf of” Chen and sought damages, not only to satisfy its subrogation interest

by recovering the amount paid in workers’ compensation benefits, but to obtain the entire 

amount to which Chen was entitled. It was on this basis, Insurer asserts, that the Superior 

Court concluded that the instant case was filed “in the name of” the injured employee and 

was a not an impermissible subrogation action filed by an insurer directly against the 

alleged third-party tortfeasor. Brief of Appellee at 7 (citing Scalise, 152 A. at 92 (providing

that “[t]he employer, moreover, 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”)). Insurer contends that 

this case is unlike Domtar Paper where this Court rejected the insurer’s attempt to sue 

the alleged third-party tortfeasor “as subrogee of” the injured employee and sought 

recovery only of the insurer’s subrogation interest.

Contrary to the assertions of Tortfeasors and their amicus, Insurer does not 

interpret Domtar Paper as holding that an insurer may only enforce its statutory right to 

 

7 Alternatively, the PAJ suggests that if this Court permits insurers to sue alleged thirdparty tortfeasors “for the use of” injured employees, we should require that formal notice 

of the action be given to the injured employee so as to allow for protection of the injured 

employee’s independent claims for pain and suffering, which did not occur here. 
[J-4-2018] - 11

subrogation under Section 319 of the WCA where the injured employee independently 

filed suit against the alleged tortfeasor and obtained a recovery, assigned the cause of 

action to the insurer, or joined in the latter’s action. Insurer posits that there is no 

requirement, statutory or otherwise, requiring a workers’ compensation insurance carrier

to demonstrate that the injured employee is aware of and involved in the insurer’s action 

against the alleged tortfeasor.8 Insurer reasons that because its complaint addresses 

Chen’s independent claims, such claims are preserved if Chen desires to intervene in the 

action. Thus, Insurer concludes, no injustice results from this manner of enforcement of

Section 319 subrogation rights, as suggested by the PAJ. Insurer concedes that it needs 

Chen’s cooperation in discovery and testimony at trial to recover, but contends that the 

issue here concerns an insurer’s right to bring the action against the alleged tortfeasor 

and not whether the case can successfully be proven.

As to the second issue for which we granted allowance of appeal, Insurer argues 

that the Superior Court was correct in holding that Insurer’s complaint was properly 

verified by Young, Insurer’s workers’ compensation subrogation specialist. Because 

Chen chose not to sue Tortfeasors, Insurer submits that it was the party controlling the 

litigation, and, thus, could verify the complaint. Insurer contends that there is no 

requirement of first-hand knowledge under Pa.R.C.P. 1024(a) when the verification is 

based on the “information and belief” as to the source of the facts verified. 

 

8

 Insurer asserts that although it contacted Chen and discussed the filing of the lawsuit, 

“[c]ounsel for [a workers’ compensation insurance carrier] cannot also represent the 

employee in a civil suit against tortfeasors, so employee is not listed as a separate party.” 

Brief for Appellee at 7. In its reply brief, the PAJ maintains that Insurer’s concession in 

this regard illustrates why an employer’s workers’ compensation carrier “cannot ethically 

bring suit in [the injured employee’s] name, with averments that purport to make claims 

for damages that may exceed any amount to which [the insurer] has a claim as subrogee, 

and belong to the employee.” Reply Brief for PAJ, at 2.
[J-4-2018] - 12

In analyzing the parties’ arguments, we begin with the most basic notion that the 

purpose of the WCA is “to provide the employee an exclusive right to benefits without the 

necessity of proving fault in exchange for abrogation of the employee’s common law 

negligence remedies.” Winfree v. Philadelphia Electric Co., 554 A.2d 485, 487 (Pa. 

1989). Under this statutory scheme, the injured employee receives prompt payment of 

certain, statutorily-defined benefits regardless of the employer’s fault, while the employer

is given the exclusivity of the remedy of workers’ compensation benefits and, notably, the

right of subrogation of any recovery from third-party tortfeasors who were responsible for

the injured employee’s compensable injuries. Thompson v. Workers’ Compensation 

Appeal Board (USF&G Co.), 781 A.2d 1146, 1153 (Pa. 2001).

The doctrine of subrogation has its origin in common law where it served as an 

equitable device that prevented the injured party from receiving double recovery and 

ensured that the party at fault, and not the innocent party, was held responsible for the 

claimed injury. Dale Mfg. Co. v. Workers’ Compensation Appeal Board (Bressi), 421 A.2d 

653, 654 (Pa. 1980). An employer’s/insurer’s right to subrogation in a workers’ 

compensation case, however, is not derived from common law, but is afforded expressly 

by statute in Section 319 of the WCA.

9

 As referenced supra at n.3, Section 319 provides 

that “[w]here the compensable injury is caused in whole or in part by the act or omission 

 

9 The rationale for an employer’s right of subrogation under Section 319 is aligned with 

the purpose of the common law doctrine. See Gillette v. Wurst, 937 A.2d 430, 436 (Pa. 

2007) (holding that Section 319’s right of subrogation has the following three purposes: 

(1) to prevent double recovery for the same injury by the claimant; (2) to ensure that the 

employer is not compelled to make compensation payments made necessary by the 

negligence of a third party; and (3) to prevent a third party from escaping liability for his 

negligence).
[J-4-2018] - 13

of a third party, the employer shall be subrogated to the right of the employe. . . to the 

extent of the compensation payable under this article by employer.” 77 P.S. § 671.

10

We are not examining this language for the first time as Section 319 has been 

historically interpreted as providing that the right of action against the tortfeasor lies 

exclusively in the injured employee. See Scalise, 152 A. at 92 (construing Section 319 

as providing that “[t]he right of action remains in the injured employee”); Moltz, 176 A. at 

843 (citation omitted) (acknowledging that the right of action against the tortfeasor abides 

in the injured worker); Whirley Indus. Inc., 462 A.2d at 802 (holding that “[t]he action 

against the third party tortfeasor must be brought by the injured employee”); Reliance Ins. 

Co., 455 A.2d at 690 (holding that “[o]ur appellate courts have not hitherto construed 

section 319 as providing the employer or its insurer with a cause of action against a third 

party in its own right”); and Domtar Paper, 113 A.3d at 1240 (reaffirming that “the right of 

action against a third-party tortfeasor under Section 319 of the WCA remains in the injured 

employee”). This interpretation of Section 319 is based upon the realization that granting 

an employer an independent cause of action against the tortfeasor would impermissibly 

split the employee’s cause of action, thereby subjecting the tortfeasor to multiple suits for 

the same harm. See Moltz, 176 A. at 843 (explaining that because the tortfeasor’s act is 

single and indivisible, it can give rise to but one liability, thus, the right of the insurer 

against the tortfeasor is derived from the injured employee alone, and can be enforced

only in his right).

 

10

 In considering the General Assembly’s intentions in enacting Section 319, we apply 

the conventional principles of statutory construction, which require “close adherence to 

terms of a statute that are plain and clear and resort to other approaches of discernment 

only in the presence of ambiguity or inexplicitness.” Williams v. City of Philadelphia, 188 

A.3d 421, 428 (Pa. 2018). Where ambiguity arises, we may consider, inter alia, the 

occasion and necessity for the statute, the object to be attained by the statute under 

examination, and the consequences of a particular interpretation. See 1 Pa.C.S. § 

1921(c).
[J-4-2018] - 14

The mere recognition that the cause of action against the tortfeasor remains in the 

injured worker does not resolve this appeal as both the Superior Court below and Insurer, 

as Appellee, agree with such proposition, but rely on case law suggesting that where the

injured employee refuses or otherwise fails to commence an action against the third-party 

tortfeasor, the employer or insurer may enforce its Section 319 subrogation right by filing 

an action “in the name of” the injured employee. Thus, reduced to its essence, this appeal 

requires us to determine whether the instant action commenced by Insurer “on behalf of 

Chunli Chen,” absent Chen’s voluntary joinder or assignment, constitutes an action 

brought “in the name of the injured employee” so as to effectuate Insurer’s Section 319 

subrogation right. 

We answer this inquiry in the negative as Insurer has offered no authority, statutory 

or otherwise, permitting it to pursue Chen’s cause of action against Tortfeasor without 

Chen’s voluntary participation as a party plaintiff or the contractual assignment of her 

claim. The precedent relied upon by Insurer, i.e., this Court’s previous decisions in 

Scalise and Domtar Paper, does not support the proposition that an employer or workers’ 

compensation carrier can seize the injured employee’s cause of action against the 

tortfeasor by merely captioning the complaint “on behalf of” the employee and/or by

including in the complaint independent claims of the employee in addition to the claim for

subrogation of workers’ compensation benefits. Rather, as detailed infra, those cases 

confirm that the cause of action belongs to the injured employee and that Section 319 

grants the employer/insurer an automatic right of subrogation of any recovery that the 

injured employee obtains from the third-party tortfeasor who was responsible for the 

compensable injuries. Because there was no recovery by Chen from which Insurer could 

subrogate and Chen did not join Insurer’s cause of action or assign her cause of action 
[J-4-2018] - 15

to Insurer, the trial court was correct in sustaining the preliminary objections filed by 

Tortfeasors and dismissing Insurer’s complaint with prejudice.

We agree with Tortfeasors that this conclusion flows from our recent decision in 

Domtar Paper, upon which both the parties and the lower courts rely for their respective 

positions. There, George Lawrence, while employed by Schneider National Inc., suffered 

a work-related injury when he slipped and fell in a parking lot leased by Domtar Paper

Company (“Domtar Paper”). Accordingly, the employer’s insurance carrier, Liberty 

Mutual Insurance Company (“Liberty Mutual”), paid Lawrence $33,929 in workers’ 

compensation benefits. Lawrence did not sue or settle with Domtar Paper and did not 

assign his cause of action to Liberty Mutual. Nevertheless, Liberty Mutual filed a 

complaint against Domtar Paper “as Subrogee of George Lawrence,” in which Lawrence 

did not join. Therein, Liberty Mutual contended that Lawrence’s work-related injuries were 

caused by Domtar Paper’s negligent maintenance of the parking lot and that Liberty 

Mutual was entitled to recover its subrogation interest under Section 319 of the WCA, 

regardless of Lawrence’s refusal to participate in the action. 

Similar to the instant case, Domtar Paper filed preliminary objections, alleging that 

in the absence of an injured employee suing in his own right, a workers’ compensation 

carrier has no independent ability to bring a subrogation claim directly against the third 

party tortfeasor. The trial court agreed and granted Domtar Paper’s preliminary 

objections. The Superior Court affirmed, rejecting Liberty Mutual’s contention that 

Section 319 conferred upon it a right to pursue separately its subrogation claims against 

the tortfeasor when Lawrence, as claimant, took no action of his own. 

This Court granted allowance of appeal to determine “whether Section 319 of the 

WCA confers on employers or their workers’ compensation insurers a right to pursue a 

subrogation claim directly against a third-party tortfeasor when the compensated 
[J-4-2018] - 16

employee who was injured has taken no action against the tortfeasor.” Domtar Paper, 

113 A.2d at 1234. In holding that Section 319 did not confer such a right in Domtar Paper, 

we rejected nearly all of the arguments set forth by Insurer in the instant appeal.

First, we rejected Liberty Mutual’s contention that prior decisions of this Court 

authorized an employer/insurer to commence suit directly against a third-party tortfeasor 

to enforce its Section 319 subrogation right to recover paid workers’ compensation 

benefits. Specifically, we held that the language employed by this Court in our 1930 

decision in Scalise, i.e., that an employer “is not to be denied his right of suit because the 

employee does not sue, but may institute an action in the latter’s name,” Id., at 92, was 

dicta because the employee there had sued the third-party tortfeasor, thus, any reference 

to an insurer’s ability to file suit in the absence of the employee’s participation was

inconsequential to the central holding of the case, which was that under Section 319, the 

cause of action lies in the employee. Domtar Paper, 13 A.3d at 1237-38.11

Second, we held in Domtar Paper that several cases of the Superior Court had 

addressed the precise inquiry and concluded that Section 319 did not afford 

employers/insurers an independent right to sue third-party tortfeasors. Id. at 1238-40 

(citing Moltz, 176 A. at 843 (holding that an insurance carrier could not file an action 

directly against the tortfeasor to enforce its subrogation rights; only one action could be 

 

11 In Domtar Paper, we further distinguished as non-binding dicta language employed in 

Frazier v. Workers’ Compensation Appeal Board (Bayuda Nurses), 52 A.3d 241 (Pa. 

2012), a decision not relied upon or cited by Insurer herein. In Frazier, this Court had 

referenced the aforementioned language from Scalise and further stated that the 

employer’s right to subrogation under Section 319 permits it to “step into the shoes of the 

claimant to recover directly against a third-party.” Frazier, 52 A.3d at 248. We clarified in 

Domtar Paper that such language in Frazier conferred no right of direct action upon the 

employer/insurer because the employee in Frazier had obtained a judgment against the 

tortfeasor and the issue in the case had nothing to do with the employer’s/insurer’s ability 

to file suit directly against the tortfeasor. Domtar Paper, 13 A.3d at 1237.
[J-4-2018] - 17

brought and the employer’s right of subrogation “must be worked out through an action 

brought in the name of the injured employee, either by joining the employer as a party 

plaintiff or as a use plaintiff”) (internal citations omitted);

12 Reliance Ins. Co., 455 A.2d at 

688, 690 (holding that “the statutory remedy in Section 319 of the WCA provided the 

exclusive means for an employer or its insurer to recover amounts it paid in workers’ 

compensation benefits to an injured employee and that there was no common law right 

of action for indemnity/contribution against the third-party tortfeasor as the employee 

holds the right of action); and Whirley Indus., Inc., 462 A.2d at 802 (invalidating an 

employer’s direct cause of action against a tortfeasor to recover the amount of increase 

in insurance premiums that it contended was attributable to the tortfeasor’s negligence 

on the grounds that the action against the third-party tortfeasor must be brought by the 

injured employee)).

We found no persuasive reason in Domtar Paper to stray from the aforementioned 

Superior Court jurisprudence, which was consistent with the Court’s ruling in Scalise that 

the right of action against the tortfeasor is indivisible and remains in the employee who 

suffered the loss. Id. at 1240. Recognizing that Pennsylvania courts disfavor splitting 

causes of action, we opined that preventing insurers from asserting independent actions

against tortfeasors accomplished two laudable goals: (1) eliminating the prospect that the 

tortfeasor could be exposed to multiple suits; and, (2) preserving the rights of the injured 

worker who retains the beneficial interest in the cause of action against the tortfeasor. Id. 

Both of these considerations come into play in the instant case.

 

12 Moltz did not suggest that a workers’ compensation insurance carrier could sue the 

tortfeasor “for the use of” the injured employee. Rather, it held that an employer’s Section 

319 subrogation right could be enforced by joining the employer as a use plaintiff in the 

employee’s action against the tortfeasor. This is a distinction with a difference as allowing 

an employer to be joined in the employee’s action as a use plaintiff does not abrogate the 

well-settled proposition that the right of action lies in the employee. 
[J-4-2018] - 18

Accordingly, the Domtar Paper Court “reaffirm[ed] that the right of action against a 

third-party tortfeasor under Section 319 of the WCA remains in the injured employee, and 

that the employer[’s]/insurer’s right of subrogation under Section 319 must be achieved 

through a single action brought in the name of the injured employee or joined by the 

injured employee.” Domtar Paper, 13 A.3d at 1240. Significant to the instant appeal, we 

reasoned that because Lawrence did not commence an action against Domtar Paper and 

was not named or joined in Liberty Mutual’s action, the Superior Court properly affirmed 

the grant of Domtar Paper’s preliminary objections. Id.13 14

Overlooking the basis of the Domtar Paper decision, which was to reaffirm that 

under Section 319 the injured worker retains the cause of action against the tortfeasor, 

 

13

 We declined expressly in Domtar Paper to elaborate on the propriety of the practice 

by which an insurer could commence an action “for the use of” the injured employee, 

finding such issue beyond the grant of allocatur. Id. at n.7. Further discussion of the 

antiquated “for use” practice in workers’ compensation cases governed by Section 319 is 

unnecessary as our decision herein makes clear that for an employer/insurer to enforce 

its Section 319 subrogation right, any action filed by the employer/insurer directly against 

the third-party tortfeasor must proceed with the injured employee’s assignment or 

voluntary participation as a party plaintiff.

14 Then Justice, now Chief Justice Saylor filed a dissenting opinion, wherein he asserted 

that by captioning the complaint as “Liberty Mutual as the subrogee of George Lawrence,” 

Liberty Mutual effectively rendered the injured employee a use plaintiff, and thereby 

satisfied the requisite that the action be filed “in the name of” the injured employee. Thus, 

he concluded that there was little danger that the cause of action would be divided 

because any subsequent action by Lawrence would have been barred by res judicata. 

Justice Saylor opined that even if the Court would accept only phraseology such as “for

the use of” or “in the name of,” as opposed to “as subrogee of,” form should not affect the 

substantive rights of the parties, and the trial court should have allowed Liberty Mutual to 

amend its complaint to use such phraseology. 

Justice Todd also filed a dissenting opinion in which she agreed with Justice Saylor 

that the manner in which Liberty Mutual captioned its complaint was not fatal to its claim. 

Because Section 319 precludes a subrogee from recovering damages in excess of what 

it paid the injured employee in benefits, Justice Todd found it critical that the subrogee 

serve the injured employee a copy of its complaint to allow the injured employee to retain 

counsel and participate in the litigation to preserve independent claims for damages. 
[J-4-2018] - 19

Insurer proffers a more literal interpretation of our holding, suggesting that by 

commencing the action “on behalf of” Chen, Insurer filed the action “in the name of” Chen, 

thereby utilizing an accepted method to enforce its Section 319 subrogation rights. We 

decline Insurer’s invitation to facilitate an employer’s/insurer’s ability to recoup workers’ 

compensation benefits at the expense of placing the injured worker’s independent cause 

of action in peril. The WCA is remedial in nature and should be interpreted for the benefit 

of the worker and liberally construed to effectuate its humanitarian interests. Peterson v. 

Workers’ Compensation Appeal Board, (PRN Nursing Agency), 597 A.2d 1116, 1120 (Pa. 

1991).

Recognizing this notion, the PAJ, as amicus advocating for the rights of injured 

workers, cogently observes that an employer’s workers’ compensation insurance carrier 

has every incentive to limit its focus of the litigation against a third-party tortfeasor to the 

amount it is due in subrogation, and has no incentive or obligation to pursue vigorously 

the injured employee’s independent claims, such as those seeking compensation for pain 

and suffering. To elucidate, upon receiving an offer from the tortfeasor that satisfies the 

subrogation lien, but does not compensate the injured employee sufficiently for pain and 

suffering or the like, the Insurer would have no obligation, nor, indeed, incentive, to decline 

the offer and proceed to trial so that the injured worker has the opportunity to be made 

whole. In fact, Insurer concedes in its brief to this Court that it is not representing the 

interests of Chen, the injured worker, in this litigation. See Brief for Appellee at 7 

(asserting that although it contacted Chen and discussed the filing of the lawsuit, 

“[c]ounsel for [a workers’ compensation insurance carrier] cannot also represent the

employee in a civil suit against tortfeasors, so employee is not listed as a separate party”). 

Additionally, the current statutory scheme does not require that the workers’ 

compensation insurance carrier provide notice to the injured worker of any lawsuits 
[J-4-2018] - 20

commenced by insurers on the worker’s behalf. Consequently, an insurer could swiftly 

file a lawsuit on behalf of the injured employee without her knowledge and obtain a 

settlement from the third-party tortfeasor before the employee has decided whether to 

pursue an action to recover sums for noneconomic damages, thereby extinguishing the 

injured worker’s independent claims. While it would further the purpose of Section 319 

to allow for a principled method by which a workers’ compensation insurance carrier could 

sue the third-party tortfeasor without detrimentally affecting the injured employee’s 

independent cause of action, it is not for this Court to create a remedy to cure a possible

deficiency in the WCA. See Burke ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267, 

1274 (Pa. 2014) (providing that “we are mindful of the precept that courts cannot insert 

words into a statute. Thus, we may not, under the guise of statutory construction, simply 

rewrite [the statute].”).

Under these circumstances, we find it apparent that sanctioning a workers’ 

compensation carrier to pursue litigation of the injured employee merely by captioning the 

complaint as “on behalf of” the employee and including a bald assertion seeking any 

recovery due the employee, contravenes the very jurisprudence establishing that it is the 

injured worker who retains the cause of action against the tortfeasor. It is for these 

reasons that we reiterate our holding in Domtar Paper and clarify that absent the injured 

employee’s assignment or voluntary participation as a party plaintiff, the insurer may not 

enforce its Section 319 right to subrogation by filing an action directly against the 

tortfeasor.15

 

15 Because we conclude that Insurer failed to assert a legally cognizant cause of action 

against Tortfeasors, we need not address the second issue in this appeal regarding the 

propriety of the verification of Insurer’s complaint.
[J-4-2018] - 21

Accordingly, we vacate the judgment of the Superior Court and reinstate the order 

of the trial court, which sustained the preliminary objections filed by Tortfeasors and 

dismissed Insurer’s complaint with prejudice.

Justice Donohue, Dougherty, Wecht and Mundy join the opinion.

Chief Justice Saylor files a dissenting opinion in which Justice Todd joins.

Justice Todd files a dissenting opinion.