J-S84002-16

 2017 PA Super 31

* Former Justice specially assigned to the Superior Court.

THE HARTFORD INSURANCE GROUP ON 

BEHALF OF CHUNLI CHEN,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

KAFUMBA KAMARA, THRIFTY CAR 

RENTAL, AND RENTAL CAR FINANCE 

GROUP,

Appellees No. 976 EDA 2016

Appeal from the Order of February 25, 2016

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): No. 1534

BEFORE: OLSON, SOLANO and FITZGERALD,* JJ.

OPINION BY OLSON, J.: FILED FEBRUARY 10, 2017

Appellant, The Hartford Insurance Group (“Hartford”) on behalf of 

Chunli Chen, appeals from the order entered on February 25, 2016, which 

sustained the preliminary objections filed by Kafumba Kamara, Thrifty Car 

Rental, and Rental Car Finance Group (hereinafter, collectively “the 

Defendants”). We respectfully vacate and remand.

Appellant instituted the current suit on September 15, 2015, by filing a 

praecipe for a writ of summons. Within Appellant’s later-filed complaint, 

Appellant declared, in the caption of the complaint, that the plaintiff was 

“The Hartford Insurance Group on behalf of Chunli Chen.” Appellant’s 

Complaint, 12/8/15, at Caption. 

As Appellant averred, on October 10, 2013, Chunli Chen (hereinafter 

“Chen”) “was standing in the parking lot of Thrifty Car Rental, waiting to rent 
J-S84002-16

- 2 -

a car, when she was struck by a rental car operated by defendant, Kafumba 

Kamara, and owned by defendant, Thrifty Car Rental, and/or defendant, 

Rental Car Finance Group.” Id. at ¶ 12 (some internal capitalization 

omitted). Appellant averred that the accident caused Chen extensive 

injuries and Appellant alleged that the Defendants were negligent in causing 

the accident. Id. at ¶¶ 18-23. 

Further, within Appellant’s complaint, Appellant averred that, at the 

time of the accident, Chen “was in the employ of Reliance Sourcing, Inc.” 

and that Hartford “has paid $59,424.71 to date in medical and wage benefits 

to [] Chen pursuant to a Workers’ Compensation insurance policy maintained 

by her employer, Reliance Sourcing, Inc.” Id. at ¶¶ 8-9.

Appellant’s complaint contained two negligence counts and, in each 

count, Appellant claimed that the particular defendant was “liable to Plaintiff, 

[ ] Hartford, and to Chunli Chen for injuries caused to her by” the defendant. 

The complaint was then verified by “Jaime Young[;] Workers’ Compensation 

Subrogation Specialist[;] The Hartford” and the verification declared that 

“[t]he averments and allegations of fact made in the foregoing civil 

complaint are true and correct to the best of [Jaime Young’s] information 

and belief.” Id. at Verification (some internal capitalization omitted).

On January 26, 2015, the Defendants filed preliminary objections to 

Appellant’s complaint. The Defendants’ first preliminary objection was in the 

nature of a demurrer and claimed that the entire complaint must be 

dismissed because Hartford was “attempting to file suit to assert subrogation 
J-S84002-16

- 3 -

rights directly against the alleged third-party tortfeasors.” The Defendants’ 

Preliminary Objections, 1/26/16, at ¶ 5. The Defendants argued:

While Pennsylvania law does allow for a workers’ 

compensation carrier to be subrogated to the rights of the 

employee, the Pennsylvania Supreme Court has held, based 

on long-standing precedent established by Pennsylvania’s 

Superior Court[,] that “the right of action against a 

third-party tortfeasor under Section 319 of the [Workers’ 

Compensation Act] remains in the injured employee, and 

that the employer/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.” Liberty Mutual Insurance Co. v. 

Domtar Paper Co., 113 A.3d 1230 (Pa. 2015).

The Defendants’ Preliminary Objections, 1/26/16, at ¶ 9.

According to the Defendants, since Chen was the injured employee 

and since Chen neither assigned her cause of action to Hartford nor was a 

party to the lawsuit, the entire complaint must be dismissed. Id. at ¶¶ 13-

16.

Second, the Defendants claimed that the complaint must be stricken 

because Chen did not verify the complaint. The Defendants further claimed 

that the individual who did verify the complaint – an employee of Hartford 

named Jaime Young – “was not present at the scene of the alleged accident 

and has no first-hand knowledge of the alleged accident from which to allege 

the facts pleaded in [the] complaint.” Id. at ¶ 20.

Appellant responded to the preliminary objections and claimed that the 

Supreme Court’s holding in Domtar Paper was inapplicable to the case at 

bar because “[i]n the Domtar [Paper] case, Liberty Mutual filed suit ‘as 
J-S84002-16

- 4 -

subrogee of’ [the injured employee, while, in the case at bar,] Hartford [] 

captioned the suit ‘on behalf of Chunli Chen’ to show [that Hartford is] 

appropriately pursuing this action in the name of the injured employee.” 

Appellant’s Response, 2/15/16, at ¶¶ 11 and 14. Further, Appellant claimed 

that the verification in the complaint was proper because Jaime Young “has 

knowledge of the facts contained in the complaint through her work on 

[Chen’s] workers’ compensation claim.” Id. at ¶ 18 (some internal 

capitalization omitted). 

On February 25, 2016, the trial court entered an order that sustained 

both of the Defendants’ preliminary objections and dismissed Appellant’s 

complaint with prejudice. Trial Court Order, 2/25/16, at 1. Within the trial 

court’s later-filed opinion, the trial court reasoned that the case was 

controlled by our Supreme Court’s opinion in Domtar Paper and that, in 

accordance with Domtar Paper, dismissal was proper because Hartford was 

attempting to bring an independent cause of action against third-party 

tortfeasors. As the trial court explained, “[u]nder Pennsylvania law, 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, 6/23/15, at 4. 

Further, the trial court held that Appellant did not properly verify the 

complaint, as the complaint was not verified by Chen; rather, the complaint 

was verified by Jaime Young, a Worker’s Compensation Specialist for 
J-S84002-16

- 5 -

Hartford. Id. at 6. The trial court held that this verification was improper 

because Jaime Young “was not present at the scene of the accident and did 

not have first-hand knowledge of the incident” and the verification “did not 

state the source of Young’s information or the reason why the verification 

was not made by a party.” Id. Finally, the trial court stated that it did not 

grant Appellant leave to amend the verification because Appellant “failed to 

assert a legally cognizable cause of action against [the] Defendants; thus, 

granting [Appellant] leave to attach a sufficient verification would have been 

futile.” Id.

Appellant filed a timely notice of appeal and now raises two issues to 

this Court:

1. Did the trial court err as a matter of law in dismissing 

[Appellant’s] claim with prejudice when pursuant to Liberty 

Mutual Insurance Company v. Domtar Paper Co., 113 

A.3d 1230 (Pa. 2015), [Hartford] captioned the suit “The 

Hartford Insurance Group on behalf of Chunli Chen” to show 

that the action was appropriately brought in the name of 

the injured employee[?]

2. Did the trial court err as a matter of law in dismissing 

[Appellant’s] complaint for lack of a verification signed by 

use party plaintiff, Chunli Chen, when the attached 

verification was signed by a representative of [] Hartford 

with knowledge of the claim; or in the alternative, did the 

trial court err in dismissing the claim rather than allowing 

[Appellant] to amend by attaching a verification signed by 

Chunli Chen?

Appellant’s Brief at 3 (some internal capitalization omitted).

We have stated:
J-S84002-16

- 6 -

A preliminary objection in the nature of a demurrer is 

properly [sustained] where the contested pleading is legally 

insufficient. Preliminary objections in the nature of a 

demurrer require the court to resolve the issues solely on 

the basis of the pleadings; no testimony or other evidence 

outside of the complaint may be considered to dispose of 

the legal issues presented by the demurrer. All material 

facts set forth in the pleading and all inferences reasonably 

deducible therefrom must be admitted as true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. The impetus 

of our inquiry is to determine the legal sufficiency of the 

complaint and whether the pleading would permit recovery 

if ultimately proven. This Court will reverse the trial court’s 

decision regarding preliminary objections only where there 

has been an error of law or abuse of discretion. When 

sustaining the [preliminary objections] will result in the 

denial of claim or a dismissal of suit, [the preliminary 

objections may be sustained] only where the case [is] free 

and clear of doubt.

Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009) 

(internal citations, quotations, and corrections omitted).

First, Appellant claims that the trial court erred in sustaining the 

Defendants’ preliminary objection in the nature of a demurrer and in holding 

that dismissal was required under Domtar Paper. As Appellant argues, 

Hartford is not pursuing a subrogation claim directly against the third-party 

tortfeasors, as was the case in Domtar Paper. Appellant’s Brief at 9. 

Rather, Hartford filed suit “on behalf of Chen” – and is attempting to 

establish the liability of the third-party tortfeasors to Chen. Id. Therefore, 

Appellant claims, its lawsuit is proper under both the Workers’ Compensation 
J-S84002-16

- 7 -

Act and Superior and Supreme Court precedent construing the Act. Id. We 

agree with Appellant.

Section 319 of the Workers’ Compensation Act (“WCA”), codified at 77 

P.S. § 671, furnishes the statutory basis for subrogation by a workers’ 

compensation carrier. Section 319 states, 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 . . . against such 

third party to the extent of the compensation payable under 

[the WCA] by the employer. . . .

77 P.S. § 671 (internal footnote omitted).1

As both this Court and the Pennsylvania Supreme Court have 

continuously declared, “the right of action against a third-party tortfeasor 

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

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

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

____________________________________________

1

Further, we note that Section 303(b) of the WCA is entitled 

“[e]xclusiveness of remedy; actions by and against third party; contract 

indemnifying third party” and provides:

In the event injury or death to an employe is caused by a 

third party, then such employe, his legal representative, 

husband or wife, parents, dependents, next of kin, and 

anyone otherwise entitled to receive damages by reason 

thereof, may bring their action at law against such third 

party. . . .

77 P.S. § 481(b).
J-S84002-16

- 8 -

joined by the injured employee.” Domtar Paper, 113 A.3d at 1240; see 

also Scalise v. F.M. Venzie & Co., 152 A. 90, 92 (Pa. 1930) (“[t]he right 

of action [against a third-party tortfeasor] remains in the injured employee; 

suit is to be brought in his name; the [WCA] employer may appear as an 

additional party plaintiff . . . or, as use plaintiff . . . , may intervene for the 

purpose of protection or he may . . . notify the tort-feasor of the fact of 

employment and of the payments made or to be made. . . . The 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”); Motz v. 

Sherwood Bros., 176 A. 842, 843 (Pa. Super. 1935) (“[t]he [WCA] 

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); 

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

1983) (“[w]e therefore hold that Section 319 is an exclusive remedy, and 

that for an employer or its insurer to enforce its subrogation rights, it 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. If such liability is 

determined, then the employer or its insurer may recover, out of an award 

to the injured employee, the amount it has paid in workers’ compensation 

benefits”). 

In Domtar Paper, our Supreme Court recently “reaffirm[ed]” the 

above pronouncements. In Domtar Paper, George Lawrence was an 
J-S84002-16

- 9 -

employee of Schneider National, Inc., who sustained a work-related injury 

when he slipped and fell in a parking lot leased by the Domtar Paper Co. As 

a result of this injury, Schneider’s workers’ compensation carrier, Liberty 

Mutual, paid Mr. Lawrence thousands of dollars in workers’ compensation 

benefits. Domtar Paper, 113 A.3d at 1232.

Mr. Lawrence did not sue Domtar Paper. Nevertheless, Liberty Mutual 

instituted suit directly against Domtar Paper in pursuit of its subrogation 

claim.2 Moreover, in the caption of the complaint, Liberty Mutual declared 

that it was suing Domtar Paper “as Subrogee of George Lawrence.” Id.

(emphasis added).

The trial court sustained Domtar Paper’s preliminary objections and 

dismissed Liberty Mutual’s complaint because, in contravention of 

Pennsylvania law, Liberty Mutual was attempting to “pursue a subrogation 

claim directly against the third-party tortfeasor when the compensated 

employee who was injured ha[d] taken no action against the tortfeasor.” 

See id. at 1234. This Court affirmed the trial court’s order. Id. at 1233.

On appeal to the Pennsylvania Supreme Court, the Supreme Court 

held that a workers’ compensation insurer may not “pursue a subrogation 

claim directly against a third-party tortfeasor when the compensated 

____________________________________________

2

Liberty Mutual also sued various other entities; however, for ease of 

discussion, we will collectively refer to the defendants in the case as “Domtar 

Paper.”
J-S84002-16

- 10 -

employee who was injured ha[d] taken no action against the tortfeasor.” 

Id. at 1232. Thus, the Supreme Court held, since Liberty Mutual was suing 

the third-party tortfeasors “as subrogee of” the injured employee – and 

since Liberty Mutual was simply attempting to pursue its own subrogation 

claim directly against the third-party tortfeasors, Liberty Mutual’s complaint 

was properly dismissed. Id. at 1238 and 1240 (emphasis added). As the 

Domtar Paper Court reasoned, its holding was required because:

the right of action against the tortfeasor is indivisible and 

remains in the employee who suffered the entire loss in the 

first instance. We emphasize that in Pennsylvania, courts 

disfavor splitting causes of action, and have frequently 

remained true to this maxim in the context of workers' 

compensation subrogation. . . . Preventing the 

employer/insurer from asserting an independent cause of 

action against the tortfeasor eliminates the possibility that 

the third-party tortfeasor could be exposed to multiple suits 

filed by both the employer and the injured employee, and 

will preserve the preferred rights of the injured employee 

who retains a beneficial interest in the cause of action 

against the tortfeasor.

Id. at 1240.

The Domtar Paper Court then held:

Accordingly, we reaffirm 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/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. Because [Mr.] Lawrence did not commence an 

action against [Domtar Paper], was not named in the action 

filed by Liberty Mutual, and did not join the action filed by 

Liberty Mutual, the Superior Court properly affirmed the 

grant of [Domtar Paper’s] preliminary objections.
J-S84002-16

- 11 -

Id.

In the case at bar, Appellant followed the above precedent and 

instituted suit against the Defendants as “The Hartford Insurance Group on 

behalf of” the injured employee, Chunli Chen. Within the complaint, 

Appellant seeks to establish the liability of the third-party tortfeasors to 

Chen – and Appellant seeks recovery in the full amount to which Chen is 

entitled due to the Defendants’ alleged negligence. See Appellant’s 

Complaint, 12/8/15, at ¶¶ 1-23. Therefore, in the case at bar, Hartford is 

not attempting to “pursue a subrogation claim directly against a third-party 

tortfeasor,” is not seeking to recover only the amount that it paid to Chen in 

workers’ compensation benefits, and is not “splitting” Chen’s cause of action. 

See Domtar Paper, 113 A.3d at 1234 and 1240. Rather, Appellant brought 

“a single action [against the third-party tortfeasors] in the name of the 

injured employee” and Appellant is attempting to recover the entire amount 

to which Chen is entitled. Thus, the procedure Appellant employed in the 

case at bar is the procedure our Supreme Court countenanced in Domtar 

Paper. Id. at 1240 (emphasis added). As such, we respectfully conclude 

that the trial court erred when it sustained the Defendants’ preliminary 

objection in the nature of a demurrer.3 

____________________________________________

3

In her dissent in Domtar Paper, Justice Todd declared that, where an 

employer or workers’ compensation carrier brings suit in the name of the 

injured employee in the capacity of a use plaintiff:

(Footnote Continued Next Page)
J-S84002-16

- 12 -

(Footnote Continued) _______________________

it is critical that the actual plaintiff – here, the injured 

employee – be served with a copy of the subrogee's 

complaint so that the employee may, if he or she desires, 

retain counsel and actively participate in the action. Such 

service ensures the injured employee may actively 

prosecute all claims he or she may possess, and not leave 

the conduct of the litigation solely in the hands of the 

subrogee.

Indeed, I deem this requirement to be particularly 

important in cases such as this, inasmuch as a workers' 

compensation subrogee is precluded by 77 P.S. § 319 from 

recovering any damages in excess of what it paid to the 

injured employee in workers' compensation benefits. 

Consequently, the subrogee has no incentive to pursue 

claims for additional damages which the injured employee 

might ordinarily seek in his or her own capacity. Giving an 

injured employee notice of a subrogee's suit is essential, as 

it allows the injured employee to actively participate in and 

direct the scope and course of discovery, trial preparation, 

or the conduct of settlement negotiations in the proceeding 

where the final fate of his or her claims is irrevocably 

decided. To be sure . . . were Liberty Mutual's instant 

action to be litigated to final judgment, any subsequent 

action brought by Lawrence would be barred under the 

doctrine of res judicata. . . .

[In his separate dissent,] Chief Justice Saylor observes that, 

to avoid harm to the ability of Lawrence to be fully and 

fairly compensated, the trial court could have required that 

he be joined as a party. . . . However, in my view, such a 

wholly discretionary process is insufficiently protective of 

the important fundamental rights of the injured employee at 

stake in these situations. It seems to me the better 

practice, then, is to require the subrogee to provide notice 

to the injured employee upon commencement of its action 

as use-plaintiff. Requiring such notice would also be 

consistent with the principle reaffirmed by the majority that 

there should be no splitting of an injured employee's cause 

of action against a third-party tortfeasor, in order to ensure 

that the injured employee may still prosecute all causes of 

(Footnote Continued Next Page)
J-S84002-16

- 13 -

Next, Appellant contends that the trial court erred in dismissing its 

complaint for an improper verification, when the complaint was verified by 

Jaime Young, “a representative of [] Hartford with knowledge of the claim.” 

Appellant’s Brief at 10. Appellant claims that the verification was proper or, 

in the alternative, Appellant claims that the trial court “should have allowed 

[Appellant 20] days to attach a verification signed by Chunli Chen, rather 

than dismissing [Appellant’s c]omplaint.” Id. at 10-11. The trial court held 

that the verification was improper because Jaime Young “was not present at 

the scene of the accident and did not have first-hand knowledge of the 

incident” and because the verification “did not state the source of Young’s 

information or the reason why the verification was not made by a party.” 

Trial Court Opinion, 6/23/15, at 6. We respectfully conclude that the trial 

court erred.

Pennsylvania Rule of Civil Procedure 1024 declares, in relevant part:

(Footnote Continued) _______________________

action in the manner he or she sees fit, even if the subrogee 

commences suit first.

Domtar Paper, 113 A.3d at 1243-1244 (Todd, J., dissenting) (emphasis in 

original). 

However, in the case at bar, the Defendants did not raise any issue 

concerning lack of service to Chen. Therefore, any such issue is not properly 

before this Court. See id. at 1244 n.1 (Todd, J., dissenting) (“any issue 

regarding [] lack of service was not raised in the lower courts, and, thus, is 

not preserved for our review in the present appeal”); Pa.R.A.P. 302(a) 

(“[i]ssues not raised in the lower court are waived and cannot be raised for 

the first time on appeal”). 
J-S84002-16

- 14 -

(a) Every pleading containing an averment of fact not 

appearing of record in the action or containing a denial of 

fact shall state that the averment or denial is true upon the 

signer's personal knowledge or information and belief and 

shall be verified. The signer need not aver the source of the 

information or expectation of ability to prove the averment 

or denial at the trial. A pleading may be verified upon 

personal knowledge as to a part and upon information and 

belief as to the remainder.

. . .

(c) 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.

Pa.R.C.P. 1024.

In the case at bar, Hartford is a party to this action because the 

injured employee, Chunli Chen, did not bring suit against the third-party 

tortfeasors and Hartford thus brought suit “on behalf of” Chen. Further, 

Hartford has a real interest in this lawsuit because it has a statutory right of 

subrogation to Chen’s recovery against the third-party tortfeasors, “to the 

extent of the compensation payable under [the WCA] by [Hartford].” 77 

P.S. § 671; see also Thompson v. W.C.A.B. (WSF&G Co.), 781 A.2d 

1146, 1151 (Pa. 2001) (holding that Section 319 of the WCA “is written in 

mandatory terms and, by its terms, admits of no express exceptions, 

equitable or otherwise. Furthermore, it does more than confer a ‘right’ of 
J-S84002-16

- 15 -

subrogation upon the employer; rather, subrogation is automatic”). Finally, 

since Chen has not sued the third-party tortfeasors, Hartford is the entity 

that is controlling this litigation. Therefore, Hartford is a party to this 

litigation and Jaime Young, as a representative of Hartford, properly verified 

the complaint. See Pa.R.C.P. 1024(c) (“[t]he verification shall be made by 

one or more of the parties filing the pleading . . .”).

Further, although Jaime Young does not have personal knowledge of 

the accident, Jaime Young did not state as much in the verification. Rather, 

within the verification, Jaime Young averred that “[t]he averments and 

allegations of fact made in the [] civil complaint are true and correct to the 

best of my information and belief.” Appellant’s Complaint, 12/8/15, at 

Verification (some internal capitalization omitted) (emphasis added); see 

also 2 Goodrich Amram 2d § 1024(a):7 (“[if a] signer knows of [the facts

averred in the pleading] because others have informed him or her of them, 

the verification should be upon ‘information and belief’”); Pa.R.C.P. 1024(a) 

(“[t]he signer need not aver the source of the information or expectation of 

ability to prove the averment or denial at the trial”). Therefore, in the case 

at bar, the verification was proper and the trial court erred when it sustained 

the Defendants’ preliminary objection in the nature of a motion to strike.

We thus conclude that the trial court erred when it sustained the 

Defendants’ preliminary objections and dismissed Appellant’s complaint with 

prejudice. We respectfully vacate the trial court’s order and remand for 

further proceedings.
J-S84002-16

- 16 -

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2017