Opinion

Pioneer Construction Co., Inc. v. Insight Pharmaceuticals, LLC d/b/a Insight Pharmacy

Court
Commonwealth Court of Pennsylvania
Filed
May 12, 2025
Status
Published
On the bench
Covey. Cohn Jubelirer
Cited by
0 cases
Authority
More cited than 35.3%

“[W]hile a WCJ may go beyond the relief requested in a particular petition, the WCJ does not have the authority to grant relief that an employer is not authorized by the Act to obtain.”

How later courts described this case

  • “[W]hile a WCJ may go beyond the relief requested in a particular petition, the WCJ does not have the authority to grant relief that an employer is not authorized by the Act to obtain.”
  • holding “[t]he courts of common pleas lack jurisdiction to adjudicate [w]orkers’ [c]ompensation claims”
  • The claimant “complied with both Section 428 of the Act and with [Civil Rule] 236(a)(2) by filing a certified copy of the [a]greement and a praecipe for judgment with the prothonotary.” (Footnote omitted)
  • “[I]t is for the legislature to formulate the public policies of the Commonwealth.”

Written by the judges who cited it.

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pioneer Construction Co., Inc., :

Eastern Alliance Insurance Company, :

and Employers Alliance, Inc. :

:

v. :

:

Insight Pharmaceuticals, LLC :

d/b/a Insight Pharmacy, : No. 867 C.D. 2022

Appellant : Argued: September 9, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge1

OPINION BY

JUDGE COVEY FILED: May 12, 2025

Insight Pharmaceuticals, LLC d/b/a Insight Pharmacy (Pharmacy)

appeals from the Lancaster County Common Pleas Court’s (trial court) May 4, 2021

order denying its Petition to Open Judgment by Default Entered by Pioneer

Construction Co., Inc. (Employer), Eastern Alliance Insurance Company, and

Employers Alliance, Inc. (collectively, Insurer) (Petition)2 based on a Workers’

Compensation (WC) Judge’s (WCJ) October 7, 2020 decision that joined Pharmacy

as a party to Insurer’s Petition to Review Medical Treatment and/or Billing (Billing

1

This matter was reassigned to the author on October 7, 2024.

2

Based on its prayer for relief, Pharmacy titled its document a Petition to Open Judgment

by Default Entered by Insurer because Section 428 of the Workers’ Compensation Act (Act), Act

of June 2, 1915, P.L. 736, as amended, added by Section 6 of the Act of June 26, 1919, P.L. 642,

under which this action was initiated is titled “Final Judgment on Default in Payments.” That

Section authorizes such filing when an employer/insurer is “in default in compensation payments

for [30] days or more,” 77 P.S. § 921 (emphasis added), rather than the default judgment

contemplated in Pennsylvania Rule of Civil Procedure (Civil Rule) 1037(b) (for failure to file

responsive pleadings) to which Civil Rules 237.5 (specifying the form of notice for a praecipe to

enter default judgment) and 237.1 (requiring 10-day notice of entry of default judgment for failure

to plead) apply. See Pa.R.Civ.P. 237.1. 237.5, 1037(b).

Review Petition), declared that Insurer overpaid Pharmacy, and granted the Billing

Review Petition directing Pharmacy to reimburse Insurer. Pharmacy presents three

issues for this Court’s review: (1) whether Insurer properly served the Praecipe for

Entry of Judgment (Praecipe) and, thus, the trial court had jurisdiction over

Pharmacy; (2) whether the trial court violated Pharmacy’s due process rights by

entering judgment against it when it was not a party to, and could not as a matter of

law participate in, the utilization review (UR) and WCJ proceedings that gave rise

to the trial court’s judgment; and (3) whether the trial court erred by denying the

Petition where Section 428 of the WC Act (Act)3 authorizes only employees or

dependents deprived of compensation to recover from an employer or insurer in

default of payment. After review, this Court reverses.4

3

Section 428 of the Act provides:

Whenever the employer, who has accepted and complied with the

provisions of [S]ection [305 of the Act, 77 P.S. § 501 (relating to an

employer’s obligation to pay WC to injured workers)], shall be in

default in compensation payments for [30] days or more, the

employe or dependents entitled to compensation thereunder may file

a certified copy of the agreement and the order of the [D]epartment

[of Labor & Industry] approving the same or of the award or order

with the prothonotary of the court of common pleas of any county,

and the prothonotary shall enter the entire balance payable under the

agreement, award[,] or order to be payable to the employe or his

dependents, as a judgment against the employer or insurer liable

under such agreement or award. Where the compensation so

payable is for a total and permanent disability, the judgment shall be

in the amount of [$30,000.00] less such amount as the employer

shall have actually paid pursuant to such agreement or award. Such

judgment shall be a lien against property of the employer or insurer

liable under such agreement or award and execution may issue

thereon forthwith.

77 P.S. § 921.

4

Currently there is a vacancy among the commissioned judges of this Court. While the

panel of judges that heard the case voted 2 to 1 to reverse, pursuant to Section 256(b) of the Internal

Operating Procedures of the Commonwealth Court, 210 Pa. Code § 69.256(b), all commissioned

judges voted on the opinion and a tie vote resulted.

2

Background

The facts are not disputed. Patricia Warnock (Claimant) was injured in

July 2011 while working for Employer. On February 14, 2020, Insurer filed the

Billing Review Petition, therein asserting that, based on a March 19, 2015 UR that

determined certain compounded pain creams prescribed for Claimant and supplied

by Pharmacy were neither reasonable nor necessary for treatment of Claimant’s

work-related injury after December 15, 2014, Insurer no longer had to pay for them.5

Notwithstanding, when Pharmacy submitted additional bills for Claimant’s

compounded creams to Insurer in October 2018, Insurer processed the bills and paid

Pharmacy $30,767.14.6 Upon realizing its error, Insurer asked Pharmacy to refund

the payments, but Pharmacy declined.

A WCJ conducted hearings on the Billing Review Petition on April 16

and May 27, 2020. On April 16, 2020, Insurer also filed a Petition for Joinder of

Additional Defendant (Joinder Petition) to join Pharmacy to the proceedings. At the

hearings,7 Insurer maintained that Pharmacy was bound by the March 19, 2015 UR

5

On April 14, 2015, Claimant filed a Petition for Review of UR Determination, which she

withdrew upon Claimant and Insurer resolving Claimant’s WC claim by a Compromise and

Release Agreement (C&R) on May 8, 2015, and, thus, the UR determination became final. Under

the C&R, Insurer paid Claimant a $110,000.00 lump sum “in return for giving up both wage loss

and medical benefits.” WCJ Dec. at 4 (Reproduced Record (R.R.) at 9a).

6

The WCJ found:

[Insurer] has submitted into the record . . . the documentation

relevant to the “mistaken” payments for treatment with dates of

service of December 15, 2014, in the amount of $ 7,623.98; January

15, 2015, in the amount of $7,651.64; February 11, 2015[,] in the

amount of $7,731.82; and[] March 11, 2015, in the amount of

$7,759.70. [Insurer] has also presented an affidavit from Sallie G.

Weber, Claims Executive for [Insurer] supporting the same.

WCJ Dec. at 5 (R.R. at 10a).

7

Although no testimony was offered at the hearings, Insurer and Pharmacy created a record

regarding the Billing Review and Joinder Petitions, and the WCJ afforded them the opportunity to

submit briefs and proposed factual findings. No one entered an appearance on Claimant’s behalf,

and she did not file answers to the Billing Review or Joinder Petitions.

3

determination and the WCJ had equitable powers under the Act to order Pharmacy

to reimburse Insurer for its mistaken payments. Pharmacy did not respond to the

Billing Review or Joinder Petitions; however, Daniel J. Siegel, Esquire (Counsel)

entered an appearance on its behalf, attended the WCJ hearings, and asserted that

the WCJ lacked jurisdiction to order reimbursement because Pharmacy could not be

a party to the WCJ proceedings and the Act contains no reimbursement remedy for

insurers who overpay providers. Pharmacy added that equity was not available to

Insurer and the underlying WCJ proceedings violated its right to due process because

it could not be a party thereto. Insurer and Pharmacy submitted post-hearing briefs

to the WCJ.

On October 7, 2020, the WCJ found that Insurer had overpaid

Pharmacy, granted the Billing Review and Joinder Petitions, and ordered Pharmacy

to reimburse Insurer $30,767.14, reasoning:

[G]iven the undisputed facts herein[,] no other conclusion

can be made but that [] Pharmacy should repay [Insurer]

the medical bills “mistakenly” paid after “mistakenly”

billed to [Insurer]. A determination through the [UR]

process was ignored by [] Pharmacy in seeking payment

for treatment found to be both unreasonable and

unnecessary, and why should [Insurer] be prohibited from

seeking redress through a [WC] adjudicatory proceeding

which has jurisdiction over [UR] issues.

WCJ Dec. at 7 (Reproduced Record (R.R.) at 158a). Pharmacy did not appeal from

the WCJ’s decision.8 See R.R. at 18a.

On January 27, 2021, Insurer filed the Praecipe in the trial court

pursuant to Section 428 of the Act requesting that judgment be entered against

Pharmacy in the amount of $31,242.55 ($30,767.14 plus $475.41 in statutory

8

The following statement appeared on the cover page of the WCJ’s decision: “If you do

not agree with this [d]ecision, an appeal must be filed with the [WC] Appeal Board within 20 days

from, but not including, the date of this notice.” WCJ Dec. at 1 (R.R. at 6a).

4

interest). See R.R. at 5a. In the certificate of service attached to the Praecipe, Insurer

represented that it served the Praecipe on Counsel by United States mail on January

12, 2021. See R.R. at 17a. According to the trial court’s docket, on January 27,

2021, the trial court’s prothonotary issued a Notice of Filing Judgment (Judgment

Notice) to “Defendants” pursuant to Pennsylvania Rule of Civil Procedure (Civil

Rule) 236, Pa.R.Civ.P. 236. R.R. at 2a. The Judgment Notice itself reflects that the

prothonotary sent the Judgment Notice to Pharmacy and Counsel. See R.R. at 4a.

By February 16, 2021 letter to Insurer, Pharmacy demanded that Insurer

withdraw the Praecipe or Pharmacy would seek sanctions against Insurer on the

bases that Insurer falsely identified Pharmacy as a party to the WCJ proceedings,

Pharmacy could not appeal from the WCJ’s decision because it was not a party to

the WC litigation, and Insurer did not properly serve the Praecipe on Pharmacy. By

March 16, 2021 correspondence, Insurer responded that because Pharmacy

participated in the WCJ proceedings and did not appeal from the WCJ’s October 7,

2020 order, Pharmacy was bound by that decision.

On April 1, 2021, Pharmacy filed the Petition and a memorandum in

support thereof in the trial court.9 On April 12, 2021, Insurer filed a response

opposing the Petition and a supporting brief. By separate May 4, 2021 orders and

without a hearing, the trial court denied the Petition. On May 27, 2021, Pharmacy

appealed from the trial court’s order to this Court.10 On June 3, 2021, the trial court

directed Pharmacy to file a Concise Statement of Errors Complained of on Appeal

9

Also on April 1, 2021, Pharmacy filed a Motion for Sanctions in the trial court with a

memorandum in support thereof. On April 12, 2021, Insurer filed a response opposing the Motion

for Sanctions and a supporting brief. By separate May 4, 2021 order, the trial court denied the

Motion for Sanctions. Pharmacy did not appeal from the trial court’s order denying its Motion for

Sanctions.

10

Pharmacy appealed to the Pennsylvania Superior Court, which transferred the matter to

this Court. This Court’s “review of a denial of a petition to open judgment [for unpaid WC

benefits] is limited to determining whether the trial court abused its discretion or committed an

error of law.” Clayton v. City of Phila., 910 A.2d 93, 97 n.8 (Pa. Cmwlth. 2006).

5

pursuant to Pennsylvania Rule of Appellate Procedure (Rule) 1925(b) (Rule 1925(b)

Statement). On July 15, 2021, Pharmacy filed its Rule 1925(b) Statement. On July

16, 2021, the trial court issued its opinion pursuant to Rule 1925(a) (Rule 1925(a)

Opinion).

Discussion

1. Service

Pharmacy first argues that the trial court lacked jurisdiction because

Pharmacy “was never properly served with the [j]udgment[.]”11 Pharmacy Br. at 13.

Pharmacy specifically claims that, because the judgment was “the first document

filed in this matter,” Pharmacy Br. at 14, it was original process that had to be served

by the sheriff, see Civil Rule 400, pursuant to Civil Rules 402 (relating to service on

persons) and/or 424 (relating to service on corporations and similar entities). See

Pa.R.Civ.P. 400, 402, 424. Pharmacy points out that the Praecipe was served on

Counsel who had not agreed to accept service on Pharmacy’s behalf, see R.R. at 17a,

and the trial court’s docket reflects that the prothonotary sent the Civil Rule 236

notice to “Defendants.” R.R. at 2a. Pharmacy declares that because it was not served

in accordance with those Civil Rules, the trial court’s January 27, 2021 judgment

was a nullity. Insurer retorts that “service of the [j]udgment was made in accordance

with the [Civil Rules] . . . [and t]his matter does not involve the initiation of a new

action.” Insurer Br. at 10.

This Court has explained:

Service of [original] process is the mechanism by which a

court obtains jurisdiction over a defendant. Sharp v.

11

Pharmacy does not specifically refer to improper service of the Praecipe or the Judgment

Notice on Pharmacy but, rather, refers to Insurer’s improper service of the judgment, and its

arguments appear to refer to the Praecipe and the Judgment Notice interchangeably. Accordingly,

this Court has reviewed both.

6

Valley Forge Med[.] C[tr.] [&] Heart Hosp[.], Inc., . . .

221 A.2d 185 ([Pa.] 1966). The rules relating to service

of process must be strictly followed. Id.; Dubrey v.

Izaguirre, . . . 685 A.2d 1391 ([Pa. Super.] 1996). Proper

service is not presumed; rather, the return of service itself

must demonstrate that the service was made in conformity

with the [Civil Rules]. T[wp.] of Lycoming v. Shannon,

780 A.2d 835 (Pa. Cmwlth. 2001). In the absence of valid

service, a court lacks personal jurisdiction over the party

and is powerless to enter judgment against that party. U.K.

LaSalle, Inc. v. Lawless, . . . 618 A.2d 447 ([Pa. Super.]

1992). Where service of process is defective, the remedy

is to set aside the service. Weaver v. Martin, . . . 655 A.2d

180 ([Pa. Super.] 1995); Frycklund v. Way, . . . 599 A.2d

1332 ([Pa. Super.] 1991) . . . . In such a case, the action

remains open, however, and the court must allow the

plaintiff to attempt to make proper service of process on

the defendant which would properly vest jurisdiction in

the court. Weaver; Frycklund.

City of Phila. v. Berman, 863 A.2d 156, 160 (Pa. Cmwlth. 2004) (footnote omitted).

Pertinent to this appeal, Civil Rule 400(a) mandates that “original

process shall be served within the Commonwealth only by the sheriff.” Pa.R.Civ.P.

400(a). Civil Rule 402(a) requires that original process be served upon a person by

handing a copy to the defendant or to the defendant’s agent at his place of business.

See Pa.R.Civ.P. 402(a). Civil Rule 424 specifies:

Service of original process upon a corporation or similar

entity shall be made by handing a copy to any of the

following persons . . . :

(1) an executive officer, partner[,] or trustee of the

corporation or similar entity, or

(2) the manager, clerk[,] or other person for the time being

in charge of any regular place of business or activity of the

corporation or similar entity, or

(3) an agent authorized by the corporation or similar entity

in writing to receive service of process for it.

7

Pa.R.Civ.P. 424. However, original process in both contexts expressly refers to

praecipes for writs of summons and/or complaints. See Ferraro v. Patterson-Erie

Corp., 313 A.3d 987 (Pa. 2024); see also Civil Rule 1007 (“An action may be

commenced by filing with the prothonotary: (1) a praecipe for a writ of summons,

or (2) a complaint.” Pa.R.Civ.P. 1007.); Civil Rule 401(a), Pa.R.Civ.P. 401(a)

(“Original process shall be served within the Commonwealth within 30 days after

the issuance of the writ or the filing of the complaint.”). Because praecipes filed

and/or judgment notices issued pursuant to Section 428 of the Act are not listed

among the original process contemplated by Civil Rules 400, 402, and 424, those

Civil Rules do not apply to this action.

Moreover, this Court has specifically concluded that when judgment is

sought under Section 428 of the Act, the filing party need only file the praecipe and

a certified copy of the WCJ’s order in the trial court and the prothonotary will issue

notice thereof pursuant to Civil Rule 236(a)(2). See Horner v. C.S. Myers & Sons,

Inc., 721 A.2d 394, 397 (Pa. Cmwlth. 1998) (The claimant “complied with both

Section 428 of the Act and with [Civil Rule] 236(a)(2) by filing a certified copy of

the [a]greement and a praecipe for judgment with the prothonotary.” (Footnote

omitted)); see also Kurtz v. Allied Corp., 561 A.2d 1294, 1297 (Pa. Cmwlth. 1989)

(The filing party “strictly complied with the requirements of [] [S]ection [428 of the

Act] by filing a certified copy of the [WCJ’s] order and a praecipe for judgment with

the prothonotary’s office of the trial court.”). Rule 236(a)(2) requires that “[t]he

prothonotary shall immediately give written notice of the entry of . . . any . . .

judgment to each party’s attorney of record or, if unrepresented, to each party.”

Pa.R.Civ.P. 236(a)(2). The note to Civil Rule 236 further states that Civil Rule 236

“does not prescribe a particular method” for the prothonotary to give notice and

expressly authorizes “service via United States mail[.]” Pa.R.Civ.P. 236,

8

Note. Rule 236(b) declares that the prothonotary must thereafter “note in the docket

the giving of the notice.” Pa.R.Civ.P. 236(b).

Here, although not required by Section 428 of the Act or Civil Rule 236

to serve the Praecipe upon anyone,12 see Horner; see also Kurtz, Insurer mailed the

Praecipe to Counsel on January 12, 2021, in advance of filing it in the trial court.

See R.R. at 17a. Further, despite that Civil Rule 236 only required the prothonotary

to mail a copy of the Judgment Notice to Pharmacy if unrepresented or to Counsel

if represented, when Insurer filed the Praecipe on January 27, 2021, the prothonotary

mailed the Judgment Notice to both Pharmacy and Counsel and marked the docket

accordingly. See R.R. at 4a. Regardless of whether Pharmacy was a party to the

underlying WC proceedings, Pharmacy was a named party in the judgment

proceeding in the trial court and it was afforded all notice required by Civil Rule

12

The trial court relied on Civil Rule 237.5 (specifying the form of notice for a praecipe to

enter default judgment), see Pa.R.Civ.P. 237.5, and related Civil Rule 237.1’s 10-day notice of

entry of judgment by default for failure to plead, see Pa.R.Civ.P. 237.1, to support its conclusion

that it was “correct in dismissing [Pharmacy’s] untimely Petition . . . . ” Trial Ct. Rule 1925(a)

Op. at 4 (R.R. at 287a). However, not only does Civil Rule 237.1 not list a praecipe filed pursuant

to Section 428 of the Act among the types of actions to which that 10-day notice applies, see

Pa.R.Civ.P. 237.1(a)(1), but this Court has ruled that “[Civil] Rule 237.1 does not apply to a

judgment entered in a [WC] case pursuant to Section 428 of the Act.” Horner, 721 A.2d at 397.

This Court further observes that Civil Rule 237 specifies:

No praecipe for entry of judgment upon a nonsuit by the court, a

verdict of a jury[,] or a decision of a judge following a trial without

a jury shall be accepted by the prothonotary unless it includes a

certificate that a copy of the praecipe has been mailed to each other

party who has appeared in the action or to the attorney of record for

each other party.

Pa.R.Civ.P. 237. However, because the instant WCJ proceedings did not involve “a nonsuit by

the court, a verdict of a jury[,] or a decision of a judge following a trial without a jury[,]” Civil

Rule 237’s proof of service requirement does not apply here.

9

236.13 Accordingly, Pharmacy’s argument that the trial court lacked jurisdiction

because the judgment was not properly served lacks merit.

2. Jurisdiction

Pharmacy also argues that Insurer filed the Praecipe in the trial court

despite that Pharmacy was not a party to, and could not as a matter of law participate

in, the UR and WC proceedings that gave rise to the judgment and, thus, the trial

court violated its due process rights and erred by entering judgment against it.

Pharmacy declares that the Act governs all WC matters and neither Insurer nor the

trial court may disregard the Act’s procedures and remedies. Pharmacy contends

that because it was not a party to the UR and WC proceedings, its Petition in the trial

court was its first opportunity to respond to Insurer’s claims. Pharmacy adds that

without formal notice, fair hearing, and an opportunity to be heard thereon, the trial

court violated its due process rights. Pharmacy maintains that, although the WCJ

concluded that he had jurisdiction of the within matter as a court of equity, see WCJ

Dec. at 5 (R.R. at 10a), “[e]quity . . . does not and cannot trump due process

violations[.]” Pharmacy Br. at 35.

Insurer responds that Pharmacy had the opportunity to and did actively

participate in the WC proceedings, the WCJ’s decision was contrary to Pharmacy’s

interests, and the WCJ’s decision became final when Pharmacy failed to timely

appeal therefrom. Insurer asserts that, under such circumstances, Pharmacy’s

arguments are an impermissible collateral attack on the WCJ’s final order.14

13

Even if the Praecipe was considered original process under the Civil Rules, the remedy

would have been for the trial court to allow Insurer “to attempt to make proper service of process

on [Pharmacy] which would properly vest jurisdiction in the [trial] court.” Berman, 863 A.2d at

160.

14

“Collateral estoppel ‘forecloses re-litigation in a later action, of an issue of fact or law

which was actually litigated and which was necessary to the original judgment.’” Sheils as Tr. for

10

For context, this Court summarizes the WC medical bill payment

process underlying the WCJ proceedings. Section 306(f.1)(1)(i) of the Act, 77 P.S.

§ 531(1)(i), obligates employers to pay an injured worker’s reasonable and necessary

medical expenses causally related to treatment for a compensable work injury. See

also CVA, Inc. v. Workers’ Comp. Appeal Bd. (Riley), 29 A.3d 1224 (Pa. Cmwlth.

2011). To that end, Section 306(f.1)(5) of the Act declares, in pertinent part: “The

employer or insurer shall make payment and providers [(including non-treating

providers, such as a pharmacy)] shall submit bills and records in accordance with

the provisions of this [S]ection.” 77 P.S. § 531(5); see also Sections 127.201 and

127.202 of the Medical Cost Containment Regulations (MCCR), 34 Pa. Code §§

127.201-127.202. Section 306(f.1)(5) of the Act requires that employers shall pay

providers within 30 days of receiving bills and related records, unless the employer

or insurer challenges the reasonableness or necessity of the treatment through the

UR process. See also Sections 127.208 and 127.404 of the MCCR, 34 Pa. Code §§

127.208, 127.404. If the UR process concludes that the treatment was reasonable

and necessary, the non-treating provider is entitled to payment under the Act and has

the fee review process available to litigate the amount or timeliness of the payment

from the employer or insurer. See Section 306(f.1)(5) of the Act; see also Sections

127.251-127.261 of the MCCR, 34 Pa. Code §§ 127.251-127.261; Keystone Rx LLC

v. Bureau of Workers’ Comp. Fee Rev. Off., 265 A.3d 322 (Pa. 2021) (Keystone Rx

LLC II). “[I]f the UR results in a determination that the treatment at issue is

unreasonable or unnecessary, the employer and insurer are not liable under the Act

to pay for the treatment.” Keystone Rx LLC II, 265 A.3d at 332.

Smith & Morris Holdings, LLC v. Bartles, 295 A.3d 302, 308 (Pa. Cmwlth. 2023) (quoting City of

Pittsburgh v. Zoning Bd. of Adjustment of City of Pittsburgh, 559 A.2d 896, 901 (Pa. 1989)

(citation omitted)).

11

Importantly, and as the WCJ and the trial court conceded, the Act does

not provide a reimbursement remedy for insurers that overpay providers for

treatments determined during a UR process to be unreasonable or unnecessary.15

Therefore, Counsel attended and participated before the WCJ solely to assert that the

WCJ lacked jurisdiction under the Act to join Pharmacy as a party to the Billing

Review Petition and to order it to refund Insurer.16

The law is well settled that “[a] judgment is void if the issuing [body]

lacked jurisdiction of the subject matter or the person.” Domus, Inc. v. Signature

Bldg. Sys. of PA, LLC, 252 A.3d 628, 640 (Pa. 2021). Thus, a WCJ’s subject matter

jurisdiction can be raised at any time, even sua sponte by the courts, including the

trial court in the instant case. See Enter. Rent-A-Car v. Workers’ Comp. Appeal Bd.

(Clabaugh), 934 A.2d 124 (Pa. Cmwlth. 2007); see also Universal AM-CAN, Ltd. v.

Workers’ Comp. Appeal Bd. (Minteer), 870 A.2d 961 (Pa. Cmwlth. 2005). “Subject

matter jurisdiction is so fundamental that ‘such jurisdiction cannot be obtained by

consent of the parties, or by waiver or estoppel[,]’” Thanhauser v. Douglass Twp.,

190 A.3d 786, 794-95 (Pa. Cmwlth. 2018) (quoting In re Borough of Valley-Hi, 420

A.2d 15, 17 (Pa. Cmwlth. 1980) (original underline emphasis omitted; bold

emphasis added)); see also Hough v. Workers’ Comp. Appeal Bd. (AC&T Cos.), 928

A.2d 1173, 1177 n.3 (Pa. Cmwlth. 2007), nor may a WCJ confer jurisdiction on

15

The WCJ declared that it has jurisdiction as a court of equity because the Act does not

provide an express remedy for Insurer against Pharmacy in this instance. See WCJ Dec. at 5-9

(R.R. at 10a-14a). The trial court agreed: “Section [428] of the . . . Act does not expressly state

that a judgment can be entered as a result of an order directing payment by a pharmacy to a

carrier[.]” Trial Ct. Rule 1925(a) Op. at 6 (R.R. at 289a).

16

“Jurisdiction relates [] to the competency of a court or administrative body to determine

controversies of the general class to which the case then presented for its consideration

belongs . . . .” Stadium Casino RE, LLC v. Pa. Gaming Control Bd., 318 A.3d 789, 800 (Pa. 2024).

This Court’s review of subject matter jurisdiction “presents a pure question of law, [and, thus,] our

standard of review is de novo, and our scope of review is plenary.” Assouline v. Reynolds, 219

A.3d 1131, 1137 (Pa. 2019).

12

himself. See Enter. Rent-A-Car. By extension, a court cannot acquire subject matter

jurisdiction if the WCJ did not have it in the first instance. See MPW Indus. Servs.

v. Workers’ Comp. Appeal Bd. (Mebane), 871 A.2d 318 (Pa. Cmwlth. 2005).

Ultimately, where the Act does not provide a remedy, the WCJ lacks subject matter

jurisdiction and cannot grant the requested relief. See id. Accordingly, this Court

concludes that Pharmacy’s decision not to appeal from the WCJ’s decision did not

preclude its challenge to the WCJ’s subject matter jurisdiction before the trial court

in this instance.

In addition, Pharmacy’s liability under the Insurer’s Billing Review

Petition is predicated on Pharmacy’s valid joinder to the WC proceedings. Section

131.36(a) of the Special Rules of Administrative Practice and Procedure Before

WCJs (WCJ Rules)17 authorizes “[a] party desiring to join another defendant to

assert a claim relevant to the pending petition [to] do so as a matter of right by filing

a petition for joinder.” 34 Pa. Code § 131.36(a). Thereafter, “[t]he additional

defendant shall have the same rights and responsibilities . . . as the original

defendant[,]” and “is liable to any other party as the [WCJ] orders.” Section

131.36(h) of the WCJ Rules, 34 Pa. Code § 131.36(h).

However, Section 131.36(b) of the WCJ Rules anticipates joining only

employers/insurers. See 34 Pa. Code § 131.36(b) (“A petition for joinder shall set

forth the identity of employers and insurance carriers sought to be joined and the

reasons for joining a particular employer or insurance carrier as well as the specific

facts and the legal basis for the joinder.” (Emphasis added.)); see also Section

131.5(a) of the WCJ Rules (defining additional defendant as “[a]n insurance carrier,

17

The Civil Rules do not apply to WC proceedings. See Hershgordon v. Workers’ Comp.

Appeal Bd. (Pepboys, Manny, Moe & Jack), 14 A.3d 922 (Pa. Cmwlth. 2011). The WCJ Rules

govern procedural matters before a WCJ. See Dep’t of Corr. v. Workers’ Comp. Appeal Bd.

(Wagner-Stover), 6 A.3d 603 (Pa. Cmwlth. 2010).

13

the Commonwealth[,] or an employer . . . joined under th[e WCJ Rules] . . . .”18 34

Pa. Code § 131.5(a) (emphasis added). Pharmacy is neither an employer nor an

insurer that could be joined to the WC proceedings. Further, that Pharmacy did not

file an answer to the Joinder Petition “did not result in deemed admissions to the

allegations” or “preclude[] [it] from presenting any evidence in its defense.” E.W.

Bowman, Inc. v. Workers’ Comp. Appeal Bd. (Wilson), 809 A.2d 447, 455 (Pa.

Cmwlth. 2002), aff’d, 844 A.2d 1216 (Pa. 2004).

Thus, the WCJ resorted to equity to join Pharmacy as a party to

Insurer’s Billing Review Petition. The WCJ declared: “[N]o other conclusion

c[ould] be made but that [] Pharmacy should repay to [Insurer] the medical bills

‘mistakenly’ paid after [they were] ‘mistakenly’ billed to [Insurer].”19 WCJ Dec. at

7 (R.R. at 12a). To support its equitable joinder of Pharmacy to Insurer’s Billing

Review Petition, the WCJ relied on this Court’s rulings in Fahringer, McCarty &

Grey, Inc. v. Workmen’s Compensation Appeal Board (Green), 529 A.2d 56 (Pa.

Cmwlth. 1987), Roadway Express, Inc. v. Workmen’s Compensation Appeal Board

(Allen), 618 A.2d 1224 (Pa. Cmwlth. 1992), Kiebler v. Workers’ Compensation

18

Although the WCJ Rules define party to include “[a] claimant, defendant, employer,

insurance carrier, additional defendant, [or] health care provider[,]” only employers and insurers

can be joined as additional defendants. 34 Pa. Code § 131.5(a).

19

The trial court agreed, stating:

[E]ven a brief examination of the WC case shows [Pharmacy] was

a party. [Insurer] filed a [Joinder] Petition . . . against [Pharmacy],

[Pharmacy’s C]ounsel entered his appearance, [Pharmacy] attended

both hearings held on the matter, and filed a brief supporting its

argument of lack of jurisdiction for joinder. The [WCJ] considered

the arguments and, on October 7, 2020, issued a [d]ecision granting

the [Joinder] Petition . . . and ordering [Pharmacy] to reimburse

[Insurer].

Trial Ct. Rule 1925(a) Op. at 4 (R.R. at 287a). The trial court added: “[T]o read the language of

[Section 428 of the Act such that judgment cannot be entered against a pharmacy] would render

[Insurer] without a remedy.” Id. at 6 (R.R. at 289a).

14

Appeal Board (Specialty Tire of America), 738 A.2d 510 (Pa. Cmwlth. 1999), and

Keystone Rx LLC v. Bureau of Workers’ Compensation Fee Review Office, 223 A.3d

295 (Pa. Cmwlth. 2019) (Keystone Rx LLC I), aff’d, Keystone Rx LLC II.20

However, in Fahringer, Kiebler, and Roadway Express, this Court

upheld a WC Appeal Board’s (Board) authority to employ equity to recoup

overpayments pursuant to Section 413(a) of the Act, 77 P.S. §§ 771-772, which

expressly authorizes a WCJ/Board to modify notices of compensation payable

(NCP), agreements, and WC awards, particularly in situations involving

mathematical and mechanical errors in applying the Act and laches. The instant

matter is distinguishable because Insurer did not seek modification of an NCP,

agreement, or WC award pursuant to Section 413(a) of the Act due to a mathematical

or mechanical error in applying the Act. See MPW Indus. Servs.

Instead, before the WCJ in this case was Insurer’s Billing Review

Petition, a form generally used to obtain a determination of whether medical bills

are causally related to an accepted work injury.21 See Appel v. GWC Warranty Corp.

(Workers’ Comp. Appeal Bd.), 291 A.3d 927, 929 (Pa. Cmwlth. 2023); see also

20

On appeal, before Pharmacy filed its reply brief in this Court, in Keystone Rx LLC II

issued on December 22, 2021, the Pennsylvania Supreme Court affirmed but criticized Keystone

Rx LLC I.

21

This Court has explained:

UR [d]eterminations “decide only the reasonableness or necessity of

the treatment under review,” and they do not decide “[t]he causal

relationship between the treatment under review and the employe’s

work-related injury.” [Section 127.406(a), (b)(1) of the MCCR,] 34

Pa. Code §§ 127.406(a), . . . (b)(1). The payment of medical

expenses and the filing of a UR [d]etermination request also do not

“establish a causal connection between a medical condition and a

claimant’s work injury.” Securitas Sec. Servs. USA, Inc. v. Workers’

Comp. Appeal Bd. (Schuh), 16 A.3d 1221, 1224 (Pa. Cmwlth. 2011).

Skay v. Borjeson & Maizel LLC (Workers’ Comp. Appeal Bd.), 280 A.3d 19, 21-22 (Pa. Cmwlth.

2022) (footnote omitted).

15

Rogele, Inc. v. Workers’ Comp. Appeal Bd. (Hall), 198 A.3d 1195 (Pa. Cmwlth.

2018). Rather than challenging causality, Insurer’s Billing Review Petition sought

review of Pharmacy’s refusal to refund Insurer’s mistaken payments,22 “a question

of law that was unsettled at the time and not specifically addressed by the Act.”

Joyce v. Workers’ Comp. Appeal Bd. (Stylette Plastics, Inc.), 709 A.2d 1011, 1014

(Pa. Cmwlth. 1998). In Philadelphia Surgery Center v. Excalibur Insurance

Management Services, LLC (Bureau of Workers’ Comp. Fee Rev. Hearing Off.), 289

A.3d 157 (Pa. Cmwlth. 2023), wherein this Court reviewed an insurer’s similar

attempt to recoup an overpayment made to a provider, but through the fee review

process, this Court declined to expand the fee review process in that manner,

observing: “[T]he fee review process only permits providers to challenge

underpayments or denials of payment. It does not permit insurers to use the fee

review process to obtain reimbursement of an overpayment.” Id. at 162. This Court

declared that “[r]emedies under the Act are limited to those created by the

General Assembly and courts are precluded from engrafting remedies in the

absence of statutory support.” Id. (emphasis added). This Court concluded:

[I]n the absence of legislative authority permitting the

[Department of Labor and Industry’s (Department) WC]

Bureau [(Bureau)] to direct a provider to reimburse an

insurer for an overpayment of fees for medical services,

22

Arguably, where, as in the instant case, causality and reasonableness and necessity of

Pharmacy’s medical treatments have been established and only payments are at issue, the Billing

Review Petition is more akin to a fee dispute. “Jurisdiction in fee disputes . . . lies with the

[Department of Labor and Industry’s WC] Bureau [(Bureau)] and its hearing examiners, not

WCJs.” Enter. Rent-A-Car, 934 A.2d at 128. A WCJ lacks jurisdiction to resolve fee disputes

and he may not confer jurisdiction on himself over them. See id. Moreover, appeals by parties

aggrieved by the Bureau’s fee review determinations are made to this Court, not the WCJ or the

Board. See Section 127.261 of the MCCR, 34 Pa. Code § 127.261; see also Enter. Rent-A-Car.

However, this Court has ruled that “there is simply no support in the Act for the [Bureau’s Fee

Review] Hearing Office to direct reimbursement of [an i]nsurer’s overpayment” through the fee

review process. Phila. Surgery Ctr. v. Excalibur Ins. Mgmt. Servs., LLC (Bureau of Workers’

Comp. Fee Rev. Hearing Off.), 289 A.3d 157, 161 (Pa. Cmwlth. 2023).

16

neither the Bureau[’s] Fee Review Hearing Office] nor

this Court may create such authority in contravention

of the Act.

Id. at 163 (emphasis added).

In Selective Insurance Company of America v. Bureau of Workers’

Compensation Fee Review Hearing Office, 86 A.3d 300 (Pa. Cmwlth. 2014),23 this

Court previously recognized: “The absence of a direct statutory remedy for

providers does not mean that th[is] Court may expand the scope of [the Act] to

create a remedy. The matter is one for the legislature, assuming there is a need for

a provider to have another remedy.” Id. at 305 n.9 (emphasis added); see also Nunez

v. Workers’ Comp. Appeal Bd. (FedEx SmartPost, Inc.) (Pa. Cmwlth. No. 1459 C.D.

2019, filed Sept. 29, 2020);24 MPW Indus. Servs., 871 A.2d at 322 (“[W]hile a WCJ

may go beyond the relief requested in a particular petition, the WCJ does not have

the authority to grant relief that an employer is not authorized by the Act to obtain.”).

Here, in joining Pharmacy, the WCJ relied heavily on the equitable

remedy this Court proffered in Keystone Rx LLC I. Therein, this Court recognized

23

Armour Pharmacy v. Bureau of Workers’ Compensation Fee Review Hearing Office

(Wegman’s Food Markets, Inc.), 206 A.3d 660, 667 (Pa. Cmwlth. 2019), overruled Selective

Insurance on other grounds.

24

The Nunez Court stated:

This Court has recognized the [WCJ’s/Board’s] ability to exercise

certain equitable principles in limited circumstances, particularly,

those involving restitution and unjust enrichment where an

overpayment has occurred. In Fahringer, this Court . . . explained,

“[t]he Board . . . does not have its roots in equity. While we do not

believe that this fact precludes the Board from employing certain

equitable principles, its use of such principles must be restricted in

light of its statutory constraints.” Fahringer, 529 A.2d at 59

(emphasis added).

Slip op. at 4 n.2 (citations omitted).

Unreported decisions of this Court issued after January 15, 2008, may be cited as

persuasive authority pursuant to Section 414(a) of this Court’s Internal Operating Procedures. 210

Pa. Code § 69.414(a). Nunez is cited for its persuasive value.

17

due process issues for pharmacies that were precluded from participating in the UR

process yet were bound by the results thereof, and declared:

[F]or UR procedures occurring after the date of this

opinion [(December 12, 2019,)] where an employer,

insurer, or an employee requests UR, a provider which is

not a “health care provider” as defined in the Act, such as

a pharmacy, testing facility[,] or provider of medical

supplies, must be afforded notice and an opportunity to

establish a right to intervene under the usual standards for

allowing intervention. Although this Court may not usurp

the powers of the General Assembly and exceed the

parameters of legislation pertaining to medical cost

containment, it bears repeating that the polestar of

[Armour Pharmacy v. Bureau of Workers’ Compensation

Fee Review Hearing Office (National Fire Insurance Co.

of Hartford), 192 A.3d 304 (Pa. Cmwlth. 2018) (]Armour

I[),] is that the Act must be construed in accordance with

due process of law. [Armour Pharmacy v. Bureau of

Workers’ Comp. Fee Rev. Hearing Off. (Wegman’s Food

Mkts., Inc.), 206 A.3d 660, 667 (Pa. Cmwlth. 2019)

(]Armour II[).]

Keystone Rx LLC I, 223 A.3d at 299. Because this Court issued Keystone Rx LLC I

on December 12, 2019, it was the law when the WCJ and the trial court rendered

their decisions and Insurer and Pharmacy filed their briefs in the instant matter.

Accordingly, the WCJ in the instant matter reasoned:

Any concern by [] Pharmacy that this [WCJ’s] order

allowing recoupment of monies mistakenly paid would

open the door for aggrieved insurance carriers and medical

providers to seek equity redress before matters like the

same throughout the Commonwealth, has been allayed by

the Commonwealth Court most recently in Keystone [Rx

LLC I]. Surely with the Court’s finding in Keystone [Rx

LLC I] that beginning December 2019, a pharmacy has a

right to intervene on [a UR] determination process it

naturally follows that a pharmacy should be allowed to be

joined as a party to a review petition concerning those

same exact issues, issues the Court found so essential in

allowing the [] pharmacies the right to intervene under the

usual standards for allowing intervention.

18

Having the benefit of the analysis and reasoning set forth

by the Commonwealth Court in Keystone [Rx LLC I], this

[WCJ] does not see the finding today as an improper

expansion of this [WCJ’s] jurisdiction, but rather a most

consistent and analytical approach to the instant matter

mindful of Keystone [Rx LLC I].

WCJ Dec. at 8-9 (R.R. at 13a-14a).

However, because, on appeal, the Pennsylvania Supreme Court

disapproved this Court’s Keystone Rx LLC I prospective ruling that pharmacies may

intervene in UR proceedings, see Keystone Rx LLC II, the equitable basis on which

the WCJ relied to craft its equitable remedy no longer exists.25 Notably, in his

concurrence, Justice David N. Wecht described:

The legislature exercised its policy-making authority to

decide who should be included in [UR], and who should

not. This is the function of our General Assembly: it

makes social policy judgments and decides among

competing interests. Villani v. Seibert, . . . 159 A.3d 478,

492 ([Pa.] 2016) (“[T]his [Supreme] Court frequently

acknowledges the Legislature’s superior resources and

institutional prerogative in making social policy

judgments upon a developed analysis.”); Weaver v.

Harpster, . . . 975 A.2d 555, 563 ([Pa.] 2009) (“[I]t is for

the legislature to formulate the public policies of the

Commonwealth.”). Whatever the potential inequity of

this result, it is a matter of legislative discretion. It is

not a field for judicial reformation.

It is not for the judiciary to usurp the General

Assembly’s policy-making authority and exceed the

parameters of legislation by engrafting statutory

requirements that the General Assembly chose to omit,

25

“[W]here an appellate decision overrules prior law and announces a new principle, unless

the decision specifically declares the ruling to be prospective only, the new rule is to be applied

retroactively to cases where the issue in question is properly preserved at all stages of adjudication

up to and including any direct appeal.” Commonwealth v. Washington, 142 A.3d 810, 812 (Pa.

2016) (quoting Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)); see also Fetherman v.

Dep’t of Transp., Bureau of Driver Licensing, 167 A.3d 846, 854 (Pa. Cmwlth. 2017)

(“Pennsylvania courts apply the law in effect at the time of the appellate decision.”). Accordingly,

the Keystone Rx LLC II Court’s ruling governs in this case.

19

even where sound reasons may appear to favor the

creation of a mechanism omitted from the statute.

Keystone Rx LLC II, 265 A.3d at 333-34 (Wecht, J., concurring) (emphasis added).

Thereafter, this Court acknowledged:

[A]lthough there have been times where the general

principles of restitution have been applied in WC

matters, . . . the more recent approach to determining

what remedies are available has been more limited.

See, e.g., Keystone R[x] LLC [II] . . . ; [Cnty. of Allegheny

v. Workers’ Comp. Appeal Bd. (]Parker[)], 177 A.3d [864]

. . . [(Pa. 2018)]. Th[is] Court understands [the

e]mployer’s position and is similarly troubled [by] the

overpayment . . . . However, the fact that no recourse

may exist under the Act does not authorize this Court

to act outside its role to create a remedy that the

General Assembly did not provide, Keystone R[x] LLC

[II] . . . ; Parker . . . , or to apply a remedy that does not

arise under a statutory provision, like Section 413(a) [of

the Act], Kiebler . . . ; Fahringer . . . .

Columbia Cnty. Comm’rs v. Rospendowski (Workers’ Comp. Appeal Bd.), 286 A.3d

436, 444-45 (Pa. Cmwlth. 2022) (emphasis added).

In addition, in Franczyk v. Home Depot, Inc., 292 A.3d 852 (Pa. 2023),

the Pennsylvania Supreme Court concluded:

[W]e will apply the plain language of the [Act], the

legislative intent it bespeaks, and our most illuminating

case law. If the result in this case is not entirely equitable

. . . , that is an unavoidable incident of the balance that the

General Assembly struck. It is in the nature of global

policy compromises that, in any given case, either party

may receive more or less than what equity alone might call

for. The General Assembly made a calculated if

generalized judgment about the public interest writ large,

and it is not our place to subvert legislative intent based

upon the outcome or equities of any one case.

Id. at 863 (emphasis added).

20

Relevant here, the General Assembly did not include any mechanism

in the Act, either expressly or by implication, for an employer/insurer to recoup

monies it mistakenly paid or overpaid to a pharmacy. That the WCJ had jurisdiction

over the underlying UR matter did not confer jurisdiction on the WCJ relative to the

Billing Review and Joinder Petitions. Because the reimbursement awarded by the

WCJ was not contemplated by the Act and, despite that Pharmacy attended and

participated in the proceedings below to challenge jurisdiction, there was no viable

basis under the Act for the WCJ to join Pharmacy as a party to Insurer’s Billing

Review Petition, even as a matter of equity.26

26

Pharmacy also raises a due process violation claim. Although it is unclear whether its

argument applies to the UR process or the WC proceedings, this Court has explained:

The Due Process Clause of the Fourteenth Amendment [to the

United States Constitution] states as follows:

No [s]tate shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States . . . nor shall any [s]tate deprive any person

of life, liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.

[U.S. CONST.] amend. XIV, § 1. The Pennsylvania Constitution also

provides this protection. [See PA. CONST.] art. I, § 9.

Armour I, 192 A.3d at 310 n.7. “[D]ue process prohibits the entry of a judgment unless the parties

have been given adequate notice and an opportunity to be heard.” Johnson v. Workers’ Comp.

Appeal Bd. (Sealy Components Grp.), 982 A.2d 1253, 1257 (Pa. Cmwlth. 2009); see also Gow v.

Dep’t of Educ., Pro. Standards & Pracs. Comm’n, 763 A.2d 528 (Pa. Cmwlth. 2000) (due process

guarantees of notice and an opportunity to be heard apply to administrative tribunals). “The first

inquiry in every due process challenge is whether the [complaining party] has been deprived of a

protected interest in ‘property’ or ‘liberty.’” Keystone Rx LLC II, 265 A.3d at 331 (quoting Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999)).

Here, Pharmacy relies on Keystone Rx LLC I, for support that it had a constitutionally-

protected property interest in the UR proceeding below for which it was entitled to due process.

However, the Keystone Rx LLC II Court has since concluded that “a non-treating provider does

not have a constitutionally-protected property interest in goods or services that it dispensed, as

these providers were never entitled to payment under the Act; rather, they simply have an

expectation of payment in the normal course.” Keystone Rx LLC II, 265 A.3d at 333. Because

21

Where the Act provides no reimbursement remedy for insurers that

overpay providers, Counsel participated before the WCJ solely to assert that there

was no basis under the Act for the WCJ to join Pharmacy or order it to reimburse

Insurer, the Department did not contemplate Pharmacy’s joinder in Section 131.36

of the WCJ Rules, and the WCJ had no valid equitable basis to join Pharmacy to

Insurer’s Billing Review Petition, Pharmacy was not and could not be a party to the

UR and WC proceedings. Because Pharmacy was not and could not be a party to

the UR and WC proceedings against whom Insurer could seek judgment in the trial

court, the trial court erred as a matter of law by not striking the judgment against

Pharmacy on that basis.

3. Section 428 of the Act

Pharmacy also contends that the trial court erred by denying the Petition

where Section 428 of the Act authorizes only employees or dependents deprived of

compensation to recover from an employer or insurer in default of payment.

Specifically, Pharmacy argues that the trial court ignored the Act’s exclusivity and

impermissibly created a mechanism beyond those permitted in the Act to allow

Insurer to recoup erroneous payments from Pharmacy.

Insurer succeeded in its UR challenge, Pharmacy “d[id] not have a constitutionally-protected

interest in [the] goods or services that it dispensed” and, thus, Pharmacy has “no viable due process

claim.” Id. at 333. In the absence of such interest, Pharmacy has no viable due process violation

claim in the UR proceeding.

To the extent Pharmacy directs its due process argument to the WC proceedings, Pharmacy

relies on Nelson v. Adams USA, Inc., 529 U.S. 460 (2000), in which the United States Supreme

Court held that entering judgment immediately upon permitting joinder of a party without first

giving him the opportunity to respond and contest liability violated due process. Pharmacy avers

that Insurer, the WCJ, and the trial court similarly violated Pharmacy’s due process rights in this

matter. However, because it is without question based on this Court’s review that Pharmacy fully

participated in and stated its position during the Billing Review and Joinder Petitions’ proceedings

before the WCJ, Nelson is inapposite. Accordingly, Pharmacy’s due process violation claim fails.

22

Insurer responds that Pharmacy’s position disregards United Parcel

Service v. Hohider, 954 A.2d 13 (Pa. Super. 2008), which supports Insurer’s use of

the trial court to obtain the entry of judgment on the WCJ’s decision. Insurer adds

that if it cannot seek to enforce the WCJ’s decision in the trial court, the judgment is

a nullity and Insurer would be forced to litigate this overpayment in the civil arena,

which would be “a waste of time, both for the parties and the judicial system.”

Insurer Br. at 25 (quoting United Parcel Service, 954 A.2d at 19).

Section 1921(a) of the of the Statutory Construction Act of 1972 (SCA)

generally provides that “[t]he object of all interpretation and construction of statutes

is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. §

1921(a). The Pennsylvania Supreme Court has more specifically ruled that “[t]he

[Act’s] plain language is our polestar in discerning the General Assembly’s intent.”

Franczyk, 292 A.3d at 855-56. “The best indication of legislative intent is the plain

language of the statute.” Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234

A.3d 665, 674 (Pa. 2020).

Relevant here, Section 428 of the Act specifies that “[w]henever the

employer . . . shall be in default in compensation payments . . . , the employe or

dependents entitled to compensation thereunder” may seek judgment by filing the

WCJ’s order in the trial court “and the prothonotary shall enter the entire balance

payable . . . to the employe or his dependents, as a judgment against the employer

or insurer liable under such agreement or award.”27 77 P.S. § 921 (emphasis added).

Where Section 428 of the Act authorizes only employees or their dependents to seek

27

Correspondingly, “[a] judgment entered pursuant to Section 428 of the Act . . . will only

be lifted if the employer establishes there was no order granting compensation, that 30 days had

not passed since the order fixing payment, a supersedeas was granted, or [] the amount owed has

been paid.” Wilson v. Travelers Cas. & Sur. Co., 88 A.3d 237, 239 n.2 (Pa. Cmwlth. 2013)

(emphasis added). In the instant matter, there was no valid “order granting compensation” on

which an employer/insurer defaulted and for which a judgment was entered pursuant to Section

428 of the Act. Id.

23

judgment against an employer or insurer, the General Assembly clearly did not

authorize Insurer (which is not an employee or dependent) to seek judgment against

Pharmacy (which is not an employer or insurer) thereunder. See Franczyk, 292 A.3d

at 857 (“Our law is clear that, when a statute specifically excludes certain categories

or classes from its reach, we will interpret the silence as to other categories or classes

as intentional.”); see also Campagna v. Brandon Knitwear, Inc., 797 A.2d 405, 408

(Pa. Cmwlth. 2002) (emphasis added) (“[T]he primary purposes behind the

judgment entry remedy supplied by Section 428 of the Act [is] to provide recourse

for a situation where an employer has been found liable to pay benefits to a claimant,

but does not.”). In addition, in cases in which a praecipe to enter judgment under

Section 428 of the Act was filed by other than an employee or his dependents, this

Court upheld a trial court’s order opening and/or striking the judgment. See Black

v. Billy Penn Corp., 457 A.2d 192 (Pa. Cmwlth. 1983); see also Lerner v. Phila.

Psychiatric Ctr., 339 A.2d 910 (Pa. Cmwlth. 1975).

Although the trial court agreed that Section 428 of the Act’s plain

language did not afford Insurer relief under the circumstances presented here, see

Trial Ct. Rule 1925(a) Op. at 6 (R.R. at 289a), relying on United Parcel Service, it

nevertheless concluded that it

must give judicial recognition to the WC[J’s d]ecision

dated October 7, 2020[,] because it cannot adjudicate a

WC matter and[,] without a procedure in place to allow

[Insurer] to enforce the WC[J’s] decision, [it] would be

useless, and [Insurer] would be left with no way to collect

what it is owed.

Trial Ct. Rule 1925(a) Op. at 6 (R.R. at 289a).

In United Parcel Service, an employee who received WC benefits

stipulated he owed the employer a specified sum for the employer’s share of a third-

party recovery, but thereafter refused to pay, and the employer requested judgment

24

against the employee for that amount in the trial court. The trial court struck the

judgment on the basis that Section 428 of the Act entitles only employees and

dependents to judgment thereunder. On appeal, the Pennsylvania Superior Court

reversed, acknowledging Section 428 of the Act’s limitations but basing the

employer’s ability to seek judgment on the facts that the employer had an absolute

right to recover its subrogation lien and the existence of a WCJ’s “final order that

requires judicial recognition.” United Parcel Serv., 954 A.2d at 19. The Superior

Court further explained that such recognition was necessary because a trial court

“cannot adjudicate [a WC] claim[,]” and “without a procedure in place that allows

the WCJ’s order to be enforced, it becomes a nullity.” Id. However, United Parcel

Service is a non-precedential Superior Court decision and, unlike the instant case,

involved a judgment filed against a party to the underlying WC proceedings in which

the employer had a statutory right to subrogation.28 Thus, United Parcel Service is

distinguishable and inapposite here.29

28

Superior Court decisions are generally not binding on this Court, and they offer

persuasive precedent only when they address analogous issues. See K. H. v. Dep’t of Hum. Servs.,

315 A.3d 178 (Pa. Cmwlth. 2024).

29

The Dissent claims, relying on United Parcel Service, that the trial court did not

impermissibly adjudicate a WC claim, but gave judicial recognition of a final WCJ order that

would otherwise have been rendered a nullity. The trial court recognized the WCJ’s 2015 decision,

which found the products Pharmacy provided not reasonable or necessary and, therefore,

Pharmacy was not entitled to payment for those products and Insurer bore no liability for any

future bills related thereto. However, the Dissent misses the mark. Here, the Praecipe did not

enforce the 2015 order but, rather, the WCJ’s 2020 decision which, consistent with the Act, was a

nullity because the WCJ did not have jurisdiction to render it in the first instance. Further,

Pharmacy did not violate the WCJ’s 2015 decision; the Insurer mistakenly paid bills that it was

not required to pay.

The Dissent further maintains, again quoting United Parcel Service, that it would be

incongruous and a waste of time, both for the parties and the judicial system, to require Insurer to

file another lawsuit merely to establish something that already has been established. While that

may be true, it does not give this Court or the trial court jurisdiction to act outside the authority the

General Assembly has bestowed upon them.

25

Moreover, Section 1921(b) of the SCA mandates that where, as here,

“the words of a statute are clear and free from all ambiguity, the letter of it is not to

be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). The

Pennsylvania Supreme Court has admonished:

It is a well[-]established principle of statutory

interpretation that [courts] “may not supply omissions in

the statute when it appears that the matter may have been

intentionally omitted.” Sivick v. State Ethics

Comm[’]n, . . . 238 A.3d 1250, 1264 ([Pa.] 2020). It is not

[the courts’] role under our tripartite system of governance

to engage in judicial legislation and to rewrite a statute in

order to supply terms which are not present therein[.]

In re Nov. 3, 2020 Gen. Election, 240 A.3d 591, 611 (Pa. 2020); see also Frazier v.

Workers’ Comp. Appeal Bd. (Bayada Nurses, Inc.), 52 A.3d 241, 245 (Pa. 2012)

(“When examining a statute, we are bound by its plain language; accordingly, we

should not insert words into the Act that are plainly not there.”). This Court has

similarly warned:

“Th[is] Court may not rewrite a statute[.]” Bender v. Pa.

Ins. Dep’t, 893 A.2d 161, 164 (Pa. Cmwlth. 2006). “It is

not within the jurisdiction of this Court to rule on the

wisdom of legislative enactments. The judiciary may not

sit as a super legislature to judge the wisdom or

desirability of legislative policy determinations . . . .”

Mercurio v. Allegheny C[n]ty. Redev[elopment] Auth., 839

A.2d 1196, 1203 (Pa. Cmwlth. 2003) (citations and

quotation marks omitted).

Lower Swatara Twp. v. Pa. Lab. Rels. Bd., 208 A.3d 521, 529 n.12 (Pa. Cmwlth.

2019); see also Franczyk; Keystone Rx LLC II; Phila. Surgery Ctr.

Here, without precedential supporting legal authority, the trial court

disregarded the plain language of Section 428 of the Act to permit Insurer, an entity

against whom judgment may be entered, to become an entity requesting judgment

be entered against an entity not statutorily liable. By doing so, the trial court

26

fashioned a remedy the General Assembly clearly did not intend. Accordingly, the

trial court erred as a matter of law by not striking the judgment against Pharmacy on

that basis.30

Conclusion

Based on the foregoing, the trial court’s May 4, 2021 order is reversed.

_________________________________

ANNE E. COVEY, Judge

30

This Court acknowledges that this outcome leaves Insurer without a means under the Act

to obtain a refund from Pharmacy of the monies it mistakenly paid to Pharmacy. However, the

WCJ and Insurer referenced civil actions Insurer could bring to otherwise seek recovery from

Pharmacy. See WCJ Dec. at 7 (R.R. at 12a); see also Insurer Br. at 24-25.

27

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pioneer Construction Co., Inc., :

Eastern Alliance Insurance Company, :

and Employers Alliance, Inc. :

:

v. :

:

Insight Pharmaceuticals, LLC :

d/b/a Insight Pharmacy, : No. 867 C.D. 2022

Appellant :

ORDER

AND NOW, this 12th day of May, 2025, the Lancaster County Common

Pleas Court’s May 4, 2021 order is reversed.

_________________________________

ANNE E. COVEY, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pioneer Construction Co., Inc., :

Eastern Alliance Insurance Company, :

and Employers Alliance, Inc. :

:

v. : No. 867 C.D. 2022

: Argued: September 9, 2024

Insight Pharmaceuticals, LLC d/b/a :

Insight Pharmacy, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

DISSENTING OPINION BY

PRESIDENT JUDGE COHN JUBELIRER FILED: May 12, 2025

The facts in this matter are simple, undisputed, and, in my view, extremely

troubling. In March 2015, the compound creams provided by Insight

Pharmaceuticals, LLC d/b/a Insight Pharmacy (Pharmacy) to the workers’

compensation claimant here were found to be not reasonable and necessary for

the claimant’s work injury, and therefore, not compensable under the Workers’

Compensation Act (Act),1 beginning December 15, 2014 and ongoing. No appeal

changed that determination, and therefore, no payment to Pharmacy for those

compound creams was required under the Act. Three and half years’ later,

Pharmacy, apparently ignoring the March 2015 decision, billed the claimant’s

employer, Pioneer Construction Co., Inc. (Employer), Eastern Alliance Insurance

1

Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.

Company, and Employers Alliance, Inc. (collectively, Insurer), over $37,000 for

compound creams it provided the claimant beginning December 15, 2014, the

very creams as of the very date addressed in the 2015 decision. Pharmacy has

never suggested “at any time that [it was] due the monies.” (Workers’

Compensation Judge (WCJ) Decision at 6 (emphasis added).2) Insurer mistakenly

paid the bill and later requested that Pharmacy return the funds but was rebuffed.

Insurer went to the workers’ compensation authorities for relief and obtained from a

WCJ a decision and order agreeing that the payment was erroneous and must be

reimbursed. Pharmacy participated in those proceedings, objected to Insurer’s

requested relief, but did not appeal the WCJ’s order and it became final. Pharmacy

did not comply with that final order.

With an unappealed and now final WCJ order and Pharmacy’s

noncompliance in hand, Insurer sought enforcement of that order in the Court of

Common Pleas of Lancaster County (common pleas) by filing a Praecipe for Entry

of Judgment (Praecipe) and serving the Praecipe on Pharmacy’s counsel by mail.

The Lancaster County Prothonotary issued a “Notice of Filing Judgment” on January

27, 2021, on which it is indicated that notice pursuant to Pennsylvania Rule of Civil

Procedure 236, Pa.R.Civ.P. 236, was provided to Pharmacy and Pharmacy’s counsel

by mail. (Reproduced Record (R.R.) at 4a.) Pharmacy filed a Petition to Open

Judgment by Default (Petition), raising issues it could have raised in an appeal

from the WCJ’s order had one been taken, asserting service by mail on its counsel

of the Praecipe was not proper service on Pharmacy, and contending that Insurer

could not enforce the WCJ’s order in common pleas under Section 428 of the Act,

2

The WCJ’s decision is found at multiple locations in the Reproduced Record, including

at pages 32a-41a.

RCJ - 2

77 P.S. § 921.3 Common pleas was unpersuaded by Pharmacy’s arguments and

denied the Petition, finding service was sufficient and citing the finality of the WCJ’s

order and the Superior Court’s reasoning in United Parcel Service v. Hohider, 954

A.2d 13 (Pa. Super. 2008), wherein the Superior Court recognized a common law

action for an employer to seek to enforce a WCJ’s order in a court of common pleas.

Because I agree with common pleas that the service of the Praecipe was proper

under the Pennsylvania Rules of Civil Procedure,4 that there is a final WCJ order

that was unchallenged by Pharmacy within the workers’ compensation system, and

that United Parcel Service’s persuasive holding should be applied here, where the

WCJ determined that Pharmacy was not entitled under the Act to the funds it

obtained from Insurer, I would affirm. Holding otherwise, I fear, might encourage,

if not incentivize, mischief within the workers’ compensation system, the longtime

3

Section 428 of the Act states:

Whenever the employer, who has accepted and complied with the provisions of

[S]ection three hundred five, shall be in default in compensation payments for thirty

days or more, the employe or dependents entitled to compensation thereunder may

file a certified copy of the agreement and the order of the [D]epartment [of Labor

and Industry] approving the same or of the award or order with the prothonotary of

the court of common pleas of any county, and the prothonotary shall enter the entire

balance payable under the agreement, award or order to be payable to the employe

or his dependents, as a judgment against the employer or insurer liable under such

agreement or award. Where the compensation so payable is for a total and

permanent disability, the judgment shall be in the amount of thirty thousand dollars

less such amount as the employer shall have actually paid pursuant to such

agreement or award. Such judgment shall be a lien against property of the employer

or insurer liable under such agreement or award and execution may issue thereon

forthwith.

77 P.S. § 921.

4

In this regard, I agree with the majority’ determination that service of the Praecipe was

proper. Pioneer Constr. Co., Inc. v. Insight Pharm., LLC, __ A.3d __, __ (Pa. Cmwlth., No. 867

C.D. 2022, filed May 12, 2025), slip op. at 6-9.

RCJ - 3

success of which, I believe, is based on the fair and honest actions by all those who

participate. And, while the majority notes the WCJ’s and Insurer’s reference to

potential “civil actions Insurer could bring to otherwise seek recovery from

Pharmacy[, s]ee WCJ Dec. at 7 (R.R. at 12a); see also Insurer Br. at 24-25[,]”

Pioneer Construction Co., Inc. v. Insight Pharmacy, LLC, __ A.3d __, __ n.28 (Pa.

Cmwlth., No. 867 C.D. 2022, filed May 12, 2025), slip op. at 26 n.28, I question

whether Pharmacy will submit itself to those civil actions without challenge.

Accordingly, I must, respectfully, dissent from the majority’s reversal of common

pleas’ order.

In addition to the foregoing, I disagree with the majority that Pharmacy’s

failure to appeal the WCJ’s order had no impact on its subsequent challenge to that

order in common pleas. For the most part, the issues and arguments as to the

validity of the WCJ’s decision Pharmacy makes on appeal are the same as those

presented to, and rejected by, the WCJ. The WCJ’s order became final when

Pharmacy did not file an appeal within 20 days.

Once an order is final, it “is not subject to collateral attack by virtue of a

petition to open and/or strike” “except for ‘extraordinary cause.’” Schneller

v. Conshohocken Borough Council (Pa. Cmwlth., No. 2146 C.D. 2012, filed Aug.

21, 2013), slip op. at 5 (quoting Witherspoon v. Wal-Mart Stores, Inc., 814 A.2d

1222, 1225 (Pa. Super. 2002)).5 “Only grave and compelling circumstances provide

‘extraordinary cause’ to justify court intervention after expiration of the appeal

period.” DeMarco v. Borough of East McKeesport, 556 A.2d 977, 979 n.4 (Pa.

5

An unreported panel decision of this Court, while not binding, may be cited for its

persuasive authority pursuant to Pennsylvania Rule of Appellate Procedure 126(b),

Pa.R.A.P. 126(b), and Section 414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code

§ 69.414(a).

RCJ - 4

Cmwlth. 1989). “Such circumstances have customarily entailed an oversight or act

by the court, or failure of the judicial process, which operates to deny the losing

party knowledge of entry of final judgment and commencement of the running of

the appeal period.” Id. (citing Luckenbaugh v. Shearer, 523 A.2d 399, 402 (Pa.

Super. 1989); Simpson v. Allstate Ins. Co., 504 A.2d 335 (Pa. Super. 1986) (absent

fraud or some other circumstance so grave or compelling as to constitute

extraordinary cause, final judgments regularly entered in an adverse proceeding may

not be disturbed)).

There is no dispute that Pharmacy was aware of the WCJ’s decision, that it

was found to be a party to and actually participated in those proceedings, and that it

was ordered to repay Insurer the monies. The WCJ’s decision expressly stated that

if no appeal was filed with the Workers’ Compensation Appeal Board (Board) in 20

days the decision would become final. (R.R. at 6a.) The place for Pharmacy to have

challenged the WCJ’s determinations as being contrary to the Act was an appeal to

the Board and, if necessary, a petition for review in this Court. It filed no such appeal

and, after 20 days, the WCJ’s decision became final and not subject to collateral

attack absent “grave and compelling circumstances [that would] provide

‘extraordinary cause’ to justify court intervention after expiration of the appeal

period.” DeMarco, 556 A.2d at 979 n.4.

The cases cited by the majority involved jurisdictional challenges raised

within the same proceeding and, primarily, in the same workers’ compensation

proceeding, not in a separate matter. In those cases, the appellate issues were

presented to the Board, which has expertise in the Act and its interpretation, and that

body, and/or this Court, resolved the jurisdictional questions. In not appealing the

WCJ’s decision to the Board, Pharmacy deprived that expert appellate body from

RCJ - 5

resolving the specific workers’ compensation issues. Instead, Pharmacy effectively

sought to litigate the merits of its challenge to Insurer’s workers’ compensation

issues in common pleas, a process that is impermissible. See Gillette v. Wurst, 937

A.2d 430, 435-36 (Pa. 2007) (holding “[t]he courts of common pleas lack

jurisdiction to adjudicate [w]orkers’ [c]ompensation claims”);6 Jo Jo Pizza

& Eastern Alliance Ins. Co. v. Larry Pitt & Assocs. (Pa. Cmwlth., No. 1162 C.D.

2021, filed Aug. 5, 2022), slip op. at 7 (same); United Parcel Serv., 954 A.2d at 19

(stating “common pleas court cannot adjudicate [a] workers’ compensation claim”).

For these reasons, I would conclude that common pleas did not err or abuse its

discretion in denying the Petition based on arguments that should have been raised

in an appeal to the Board but were not due to Pharmacy’s failure to appeal to that

body thereby rendering the WCJ’s decision final.

As for Pharmacy’s arguments that common pleas erred in denying the Petition

because the Petition was not authorized by Section 428 of the Act, I, like common

pleas, acknowledge that this statutory provision’s plain language does not expressly

permit the filing of the Praecipe by Insurer. However, I agree with common pleas

that the Superior Court’s reasoning in United Parcel Service is persuasive7 and

supports common pleas’ denial of the Petition.

In United Parcel Services, an employer filed a praecipe for entry of judgment

with a court of common pleas following a final order by a WCJ that directed the

claimant to disgorge monies to satisfy the employer’s subrogation lien under Section

6

While Gillette is a plurality decision, its statement that workers’ compensation issues lie

within the jurisdiction of a WCJ is authoritative, as it was not challenged in either the concurrence

or the dissent. See 937 A.2d at 437-41 (Cappy, C.J., concurring; Baer, J., dissenting).

7

See Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018)

(“In general, Superior Court decisions are not binding on this Court, but they offer persuasive

precedent where they address analogous issues.”).

RCJ - 6

319 of the Act, 77 P.S. § 671, with which the claimant did not comply. Following

the prothonotary’s entry of the judgment, the claimant filed a motion to strike the

judgment based on there being no statutory authority, particularly in Section 428,

for the employer’s actions. The court of common pleas agreed and struck the

judgment.

On appeal, the Superior Court reversed, acknowledging the limitations of

Section 428, but finding a basis for the employer’s ability to seek entry of judgment

in the facts that the employer had an absolute right to recover its subrogation lien

and the existence of a workers’ compensation judge’s “final order that requires

judicial recognition.” United Parcel Serv., 954 A.2d at 19. It explained that judicial

recognition of a WCJ’s final order was necessary because a “common pleas court

cannot adjudicate [a] workers’ compensation claim.” Id. The Superior Court

observed, however, that

without a procedure in place that allows [a] WCJ’s order to be enforced,

it becomes a nullity. Moreover, to require an employer under the

circumstances that exist in this case to file another law[]suit merely to

establish something that already has been established is incongruous

and a waste of time, both for the parties and judicial system.

Id.

While this matter does not involve payment of an employer’s subrogation lien,

which was litigated and decided by a WCJ, it does involve, as in United Parcel

Service, a final WCJ’s decision and order entered, after litigation, directing the

payment of funds and the ongoing refusal by the party directed to do so. Moreover,

as in United Parcel Service, common pleas did not impermissibly adjudicate a

workers’ compensation claim but gave judicial recognition of a final WCJ order that

would, otherwise, have been rendered a nullity. It also gave recognition to the

adjudication of the compensability of Pharmacy’s compound creams that occurred

RCJ - 7

in the 2015 decision, which found the products Pharmacy provided not reasonable

or necessary for the claimant’s work injury, and, therefore, Pharmacy was entitled

to no payment for those products and Insurer bore no liability for any future bills

related thereto. Pharmacy appears to have ignored that adjudication when it, years

later, billed Insurer for the very products found to be not compensable under the Act.

That earlier adjudication was confirmed by the WCJ in the most recent proceeding,

who found that Insurer certainly bore no liability for the bills Pharmacy submitted

three years after the 2015 decision and directed reimbursement of the monies paid.

Both the 2015 decision and the current WCJ order went unchallenged in the

workers’ compensation system. Pharmacy appeared before the WCJ, was

designated a party, had an opportunity to and did participate, and gave argument,

not on why it was entitled to keep the monies Insurer paid it or “that [it was] due the

monies,” (WCJ Decision at 5), but on why the WCJ did not have jurisdiction and

how there was no means for Insurer to seek reimbursement. The WCJ disagreed

with both propositions, and Pharmacy decided not to appeal that decision,

notwithstanding its party status, thereby rendering the WCJ’s decision and order

final. Under these circumstances, I would agree with the Superior Court that it

would be “incongruous and a waste of time, both for the parties and judicial

system[,]” to require Insurer “to file another law[]suit merely to establish something

that already has been established.” United Parcel Serv., 954 A.2d at 19.

Accordingly, I discern no error or abuse in common pleas’ denying the Petition on

the same basis. I, therefore, respectfully dissent.

____________________________________

RENÉE COHN JUBELIRER, President Judge

RCJ - 8

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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