Tiano, B., Aplt. v. City of Phila. (WCAB)

[J-54-2024]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

BARBARA TIANO, : No. 14 EAP 2024

:

Appellant : Appeal from the Order of the

: Commonwealth Court entered on

: August 17, 2023, at No. 438 CD

v. : 2022, affirming the Order of the

: Workers' Compensation Appeal

: Board entered on April 18, 2022, at

CITY OF PHILADELPHIA AND PMA : No. A21-0483.

MANAGEMENT CORP. (WORKERS' :

COMPENSATION APPEAL BOARD), : ARGUED: September 11, 2024

:

Appellees :

DISSENTING STATEMENT

JUSTICE WECHT FILED: December 17, 2024

From time to time, we dismiss a discretionary appeal by entering a per curiam

order stating that the appeal was granted improvidently.1 Such orders are sometimes

necessary for prudential reasons. Legal issues can become moot after we grant

allowance of appeal, whether because of changing circumstances, statutory

amendments, or new judicial decisions. Issue preservation problems that were not

immediately apparent at the allocatur stage can sometimes materialize, preventing us

from reaching the issue that we agreed to resolve.

No such obstacles are present here. The Court’s rationale for dismissing this

appeal is unknown to me. My best conjecture is that the Court simply regrets granting

allocatur in this matter. As I have stated in the past, I do not support the practice of

1 See Supreme Court Internal Operating Procedures § 3(C)(3) (“In cases involving

discretionary appeals, the Court may enter a per curiam order dismissing the appeal as

improvidently granted.”).

dismissing an appeal as having been improvidently granted after briefing and oral

argument is complete simply because buyer’s remorse has belatedly arisen over our prior

decision to grant allocatur.2 I respectfully dissent from today’s Order declining to resolve

this appeal on the merits. We should decide what we agreed to decide.

I.

Reaching the issue that the Court granted allocatur to resolve, I would affirm the

Commonwealth Court’s decision. The question presented is whether the City of

Philadelphia is entitled to subrogation for benefits that it paid under the Heart and Lung

Act3 to an injured police officer who subsequently received a settlement from a third-party

tortfeasor. As with most cases involving police officers who are injured in the line of duty,

this matter implicates both the Workers’ Compensation Act4 and the Heart and Lung Act.

Under the Workers’ Compensation Act, when an employee’s work injury is caused (at

least in part) by a third party, the employer is entitled to subrogation from any third-party

2 See, e.g., Commonwealth v. Thompson, 315 A.3d 1277, 1278 (Pa. 2024) (Wecht,

J., dissenting) (“There appears to be no reason to dismiss this appeal beyond an apparent

change in the Majority’s willingness to consider the significant legal question that it

raises.”). I have also in prior cases described the many ways in which dismissals like

today’s are unfair to litigants who bring cases before our Court. See, e.g., Bass Pro

Outdoor World LLC v. Harrisburg Mall Ltd. P’ship, ___ A.3d ___, 2024 WL 4579661, at

*1 (Pa. 2024) (Wecht, J., dissenting) (“The unavoidable reality of this Court’s decision not

to decide this case is that the parties’ extensive efforts have proved to be in vain—an

expenditure of time and money with no return on the investment.”); Commonwealth v.

Capriotti, 287 A.3d 810, 829 (Pa. 2023) (Wecht, J., dissenting) (“When we accept

discretionary review of a case, we trigger an extensive, time-consuming process involving

the investment in time and treasure of numerous people, including parties, attorneys, and

supporting staff. Decisions must be made, records reviewed, strategies devised, and

briefs drafted and submitted. Then there are the preparations for oral argument, which

we admonish attorneys to approach rigorously and with command of their cases and the

legal issues at bar. Finally there is oral argument itself, which often requires burdensome

travel and the rigors of appearing before us.” (footnote omitted)).

3 53 P.S. §§ 631-640.

4 77 P.S. §§ 1-2710.

[J-54-2024, 14 EAP 2024] - 2

tort recovery that the employee receives.5 The Heart and Lung Act, by contrast, does not

contain an express subrogation provision, but this Court has held that public employers

who pay Heart and Lung Act benefits have a common law right of subrogation against

third-party tort suits.6 Thus, employers typically have subrogation rights for benefits paid

to injured workers under both the Workers’ Compensation Act and the Heart and Lung

Act.

There is one major exception to this default rule favoring subrogation. Although

the Workers’ Compensation Act has for over a century given employers broad

subrogation rights,7 those rights were severely limited in 1984, when the General

Assembly passed the Motor Vehicle Financial Responsibility Law (“MVFRL”).8 Relevant

here is Section 1720 of the MVFRL, which states that employers that pay benefits under

the Heart and Lung Act or the Workers’ Compensation Act are not entitled to subrogation

5 Specifically, Section 319 of the Workers’ Compensation Act states that:

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

[the Workers’ Compensation Act] by the employer.

77 P.S. § 671.

6 Topelski v. Universal S. Side Autos, Inc., 180 A.2d 414, 420 (Pa. 1962) (“There

can be no question of the right of the County to recover by way of subrogation from the

third party tortfeasor all the salary, medical and hospital expenses paid to or for

Topelski[.]”); see DAVID B. TORREY, ANDREW E. GREENBERG, & LEE FIEDERER, WORKERS’

COMPENSATION: LAW AND PRACTICE § 24:25 (4th ed. 2024) (“The payor of the Heart & Lung

benefits is generally entitled to subrogation[.]”).

7 See TORREY ET. AL., supra note 6, § 12:1 (“The employer or insurance carrier that

has made payments to an injured worker under the Pennsylvania Workers’ Compensation

Act has broad rights to subrogation with regard to the worker’s third-party action. This

right has been part of the law, at Section 319 of the Act, since first enacted in 1915.”

(footnote omitted)).

8 75 Pa.C.S. §§ 1701-1799.7.

[J-54-2024, 14 EAP 2024] - 3

whenever the injured worker’s third-party tort suit arises “out of the maintenance or use

of a motor vehicle.”9 Concomitantly, Section 1722 of the MVFRL states that injured

employees cannot recover as damages in their third-party tort suits the amount of

workers’ compensation or heart and lung benefits they received from their employers.10

About a decade after the MVFRL went into effect, the General Assembly passed

Act 44 of 1993,11 which repealed MVFRL sections 1720 and 1722 “insofar as they relate

to workers’ compensation payments or other benefits under the Workers’ Compensation

Act.”12 Interpreting this language in Oliver v. City of Pittsburgh, 11 A.3d 960 (Pa. 2011),

this Court unanimously held that, because Act 44 refers only to workers’ compensation

benefits and is silent regarding Heart and Lung Act benefits, MVFRL Section 1720’s anti-

subrogation mandate still applies to the latter.13 This means that, in work-related car

accident cases, employers are entitled to subrogate against their employees’ third-party

recoveries for workers’ compensation benefits, but not for heart and lung benefits. Injured

employees, in turn, are permitted to plead the amount of their workers’ compensation

9 75 Pa.C.S. § 1720 (“In actions arising out of the maintenance or use of a motor

vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort

recovery with respect to workers’ compensation benefits . . . or benefits paid or payable

by a program, group contract or other arrangement whether primary or excess[.]”); Fulmer

v. PSP, 647 A.2d 616, 619 (Pa. Cmwlth. 1994) (holding that MVFRL Section 1720 applies

to Heart and Lung Act benefits).

10 75 Pa.C.S. § 1722 (“In any action for damages against a tortfeasor . . . arising out

of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits

under the coverages set forth in this subchapter, or workers’ compensation . . . shall be

precluded from recovering the amount of benefits paid or payable under this subchapter,

or workers’ compensation[.]”).

11 Act of July 2, 1993, P.L. 190, No. 44.

12 Id. § 25(b). The text of Sections 1720 and 1722 remains in its pre-Act 44 form,

facially prohibiting subrogation.

13 Oliver, 11 A.3d at 966 (concluding that Act 44 unambiguously “does not impact

any anti-subrogation mandates pertaining to [Heart and Lung Act] benefits”).

[J-54-2024, 14 EAP 2024] - 4

benefits as damages in their third-party lawsuits, but—per Act 44 and Oliver—they cannot

plead any damages for which they received benefits under the Heart and Lung Act.

Two decisions from this Court have elaborated on Act 44’s partial repeal of the

MVFRL’s anti-subrogation provision. The first case, PSP v. W.C.A.B. (Bushta),14 involved

a Pennsylvania State Police trooper who was injured in a car accident while working and

was paid 100% of his salary under the Heart and Lung Act. Ordinarily, injured workers

who are entitled to benefits under both the Heart and Lung Act and the Workers’

Compensation Act, must “turn over” to their employer any workers’ compensation benefits

that they received during the same period.15 But Bushta involved a self-insured employer;

in those circumstances, the employer is not required to pay workers’ compensation

benefits to the claimant, since the payments would simply be returned to the employer

anyway.16

The Bushta Court rejected the argument that, because workers’ compensation

benefits were payable to the trooper (if not actually paid), the PSP should be entitled to

subrogation for the workers’ compensation payments that it technically owed the trooper.

The Court concluded that there is “no basis upon which to conclude that a mere

acknowledgement in an NCP of a work injury, and the specification of the amount of

benefits to which an injured employee would be entitled under the [Workers’

Compensation Act], transforms an injured employee’s Heart and Lung benefits into

14 184 A.3d 958 (Pa. 2018).

15 53 P.S. § 637(19) (“[A]ny workmen’s compensation, received or collected by any

such employe for such period, shall be turned over to [the employer] and paid into the

treasury thereof.”).

16 See Stermel v. W.C.A.B. (City of Phila.), 103 A.3d 876, 877-78 (Pa. Cmwlth. 2014)

(“Self-insured public employers that pay Heart and Lung benefits do not also make

workers’ compensation payments because they would simply be returned.”).

[J-54-2024, 14 EAP 2024] - 5

[workers’ compensation] benefits under the MVFRL.”17 Thus, the PSP had no right to

subrogation, because “all of the benefits [the trooper] received were Heart and Lung

benefits,”18 and Oliver makes clear that Act 44’s repeal of the MVFRL’s anti-subrogation

provision applies only to workers’ compensation benefits.

The other decision from this Court interpreting Act 44’s partial repeal of the

MVFRL’s anti-subrogation provision is Alpini v. W.C.A.B. (Tinicum Township).19 Like

Bushta, Alpini involved a police officer who was injured in a car accident, received Heart

and Lung Act benefits, and then secured a third-party tort settlement. The only relevant

distinction between Bushta and Alpini is that the PSP in Bushta was self-insured, whereas

the police department in Alpini was not. Unlike the trooper in Bushta, the police officer in

Alpini therefore received workers’ compensation checks, but he promptly turned them

over to his employer as the Heart and Lung Act requires. The Alpini majority held that

this distinction is immaterial, that the police department was not entitled to subrogation,

and that Bushta’s rationale applies to insured and self-insured employers alike.20

17 Bushta, 184 A.3d at 969.

18 Id.

19 294 A.3d 307 (Pa. 2023).

20 Alpini, 294 A.3d at 324 (“[W]hile we acknowledge that there are factual differences

between insured public employers and self-insured public employers, we decline to limit

our holding in Bushta to situations that solely involve self-insured employers.”). I

dissented in Alpini, expressing the view that insurers are entitled to subrogation for

workers’ compensation benefits that they pay to claimants who are also receiving Heart

and Lung Act benefits. Even though such claimants are required to “turn over” to their

employer any workers’ compensation checks that they receive, that alone does not prove

that the heart and lung benefits “subsume” the workers’ compensation benefits, as is the

case when the employer is self-insured. Id. at 333 (Wecht, J., dissenting) (explaining

that, unlike in Bushta, the employer’s insurer “sent workers’ compensation payments to

Alpini, who ‘received or collected’ them, and then turned them over to the Township as

required by the [Heart and Lung Act]”).

[J-54-2024, 14 EAP 2024] - 6

II.

The present appeal involves Philadelphia police officer Barbara Tiano, who was

injured at work when she fell into a hole that utility workers left uncovered after relocating

a telephone pole. The City of Philadelphia issued a notice of compensation payable

accepting liability for Tiano’s injury under the Workers’ Compensation Act. Ultimately,

however, the City paid Tiano 100% of her salary under the Heart and Lung Act in lieu of

workers’ compensation benefits.

Three years after her injury, Tiano settled a civil lawsuit against the utility company

for $450,000. After learning about the settlement, the City filed review and modification

petitions seeking subrogation against Tiano’s settlement for benefits that it paid her under

the Heart and Lung Act. Citing Bushta, the workers’ compensation judge held that the

City had no right to subrogation for benefits that it paid under the Heart and Lung Act.21

On appeal, however, the Board reversed, explaining that Heart and Lung Act benefits are

non-subrogable only when the third-party tort recovery arises from a motor-vehicle

accident, as was the case in Oliver, Bushta, and Alpini.22 The Commonwealth Court then

unanimously affirmed the Board.23

Tiano now argues to this Court that “Oliver and Bushta, in practice, overruled

Topelski,” which had held that public employers who pay Heart and Lung Act benefits

21 WCJ Decision, 6/9/2021, at 6.

22 Board Opinion, 4/18/2022, at 11-12 (“When a third party settlement or recovery

arises from the use of a motor vehicle, an employer may not seek subrogation for workers’

compensation benefits paid or Heart and Lung Act reimbursement, but those restrictions

do not apply to recovery under a different cause of action not arising under the MVFRL.”).

23 Tiano v. City of Phila., 2023 WL 5282783, at *1 (Pa. Cmwlth. 2023).

[J-54-2024, 14 EAP 2024] - 7

have a common law right of subrogation against third-party tort suits.24 According to

Tiano, Oliver and Bushta together stand for the proposition that employers have no right

to subrogation for benefits paid under the Heart and Lung Act.25 Quoting from Bushta,

Tiano argues that, when an employee is entitled to benefits under both the Workers’

Compensation Act and the Heart and Lung Act, the “Heart and Lung [b]enefits subsume

[the workers’ compensation] benefits, and thus subrogation of such benefits is barred.”26

Tiano misunderstands our precedent. Unlike the claimants in Oliver and Bushta,

Tiano’s injury did not arise from the maintenance or use of a motor vehicle. It is therefore

irrelevant whether her Heart and Lung Act benefits “subsumed” her workers’

compensation benefits, as was the case in Bushta. Because the MVFRL and Act 44 are

not implicated here, the City is entitled to subrogation from Tiano’s third-party tort

recovery regardless of whether the benefits that it paid her are best conceptualized as

Heart and Lung Act benefits, workers’ compensation benefits, or some combination of the

two.27 Nothing in Oliver, Bushta, or Alpini disturbed the common law right of employers

to subrogation for benefits paid under the Heart and Lung Act. Rather, the decisions in

those cases concerned statutory provisions that have no bearing at all here. Thus, the

Commonwealth Court’s decision allowing subrogation should be affirmed.

24 Brief for Tiano at 20; see Topelski, 180 A.2d at 420 (“There can be no question of

the right of the County to recover by way of subrogation from the third party tortfeasor all

the salary, medical and hospital expenses paid to or for Topelski[.]”).

25 Brief for Tiano at 22 (“[W]here the employee does not actually receive or collect

workers’ compensation benefits, as is the case with Ms. Tiano, there is absolutely no

basis for subrogation.” (emphasis in original)).

26 Id. (emphasis omitted).

27 77 P.S. § 671 (statutory right to subrogation for workers’ compensation benefits);

Topelski, 180 A.2d at 420 (common law right to subrogation for Heart and Lung Act

benefits).

[J-54-2024, 14 EAP 2024] - 8