because insurance policy conditioned insurer’s right to cancel for non-payment of premium upon “notifying the insured at least ten days prior to the cancellation,” insurer’s failure to do so results in continuation of coverage
How later courts described this case
- because insurance policy conditioned insurer’s right to cancel for non-payment of premium upon “notifying the insured at least ten days prior to the cancellation,” insurer’s failure to do so results in continuation of coverage
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Jordan, :
Petitioner :
:
v. : No. 621 C.D. 2024
: Argued: April 8, 2025
Lost Forest Development, LLC, :
State Workers’ Insurance Fund, :
Lace Building Affiliates, LP, :
Scranton Lace Building, LLC, and :
SCE Environmental Group, Inc. :
(Workers’ Compensation Appeal Board), :
Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: August 19, 2025
Frank Jordan (Claimant) petitions for this Court’s review of an
adjudication of the Workers’ Compensation Appeal Board (Board) that dismissed
his petition to join Lace Building Affiliates, LP (Lace Building), Scranton Lace
Building LLC (Scranton Lace), and SCE Environmental Group, Inc. (SCE), to his
claim for workers’ compensation benefits. Claimant alleges that Lace Building,
Scranton Lace, and SCE were the general contractors for the project on which he
was injured and, as such, statutory employers under Section 302(a) of the Workers’
Compensation Act (Act).1 In dismissing Claimant’s petition, the Board affirmed the
decision of the Workers’ Compensation Judge (WCJ) that because Claimant’s
joinder petition was filed after the expiration of the three-year statute of limitations
in Section 315 of the Act, 77 P.S. §602, it was untimely. The Board also affirmed
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §461.
the WCJ’s decision dismissing the State Workers’ Insurance Fund (SWIF) from the
case for the stated reason that it had cancelled the insurance coverage of Lost Forest
Development, LLC (Employer), named as defendant in the claim petition, before the
date of Claimant’s injury.
On appeal, Claimant argues that the Board erred because he filed his
claim petition, which named the alleged statutory employers, before the statute of
limitations had run. The joinder petition merely amended the claim petition.
Claimant also argues that the Board’s dismissal of SWIF was premature because
Claimant had not completed discovery on whether SWIF’s cancellation of workers’
compensation coverage was legally effective. Upon review, we reverse in part and
vacate in part the Board’s adjudication and remand the matter to the Board for further
proceedings.
Background
On May 2, 2022, Claimant filed a claim petition alleging that on May
3, 2019, when he was employed as a laborer by Employer, he sustained a work-
related injury to his left shoulder that required surgery. The claim petition alleged
that the incident occurred during the demolition of the Scranton Lace Factory and
that Lace Building, Scranton Lace, and SCE had subcontracted with Employer to
work on this demolition. In the section of the claim petition form entitled
“Defendant/Employer Information[,]” Claimant responded “Lost Forest
Development LLC.” Reproduced Record at 4a (R.R. __). In the section entitled
“Wage and Additional Employment Information[,]” Claimant responded as follows:
14. Did the Claimant/Employee have any additional
employment at the time of injury/onset of disease?: Yes.
14a. If Yes, please add all additional Employers:
Lace Building [ ], Scranton Lace [ ] and/or SCE [ ], all with an
office or place of business located at 1380 Mt. Cobb Road,
2
Jefferson [Township,] PA, are the statutory employer of the
Claimant pursuant to the [ ] Act and liable to Claimant under the
[A]ct in the event that [Employer] does not/did not have
Pennsylvania Workers’ Compensation insurance and was not a
qualified self insurer at the time of Claimant’s injury, as
[C]laimant has been led to believe by [SWIF], which advised him
that it had provided such insurance coverage to [Employer], but
had terminated coverage due to non-payment of premium prior
to Claimant’s injury, although it had received but refused a
partial payment of premium from [Employer], after termination
of the policy.
R.R. 5a (bold in original). Claimant served the claim petition on Lace Building,
Scranton Lace, and SCE, as well as Employer and SWIF. R.R. 6a.
On May 3, 2022, the Department of Labor and Industry (Department)
issued a notice of assignment that identified only Employer and SWIF as defendants
and required them to file an answer within 20 days. SWIF filed an answer on May
11, 2022, denying that it insured Employer or any of the alleged statutory employers
as of May 3, 2019, when the alleged work injury occurred.
On May 24, 2022, Claimant re-served the claim petition on Lace
Building, Scranton Lace, and SCE, along with the Department’s notice of
assignment and SWIF’s answer. Claimant also served subpoenas on Lace Building
and Scranton Lace.
On June 15, 2022, Claimant filed a petition to join Lace Building,
Scranton Lace, and SCE. The petition stated that it requested their joinder for the
following reasons:
The above Additional Defendants were Claimant’s Statutory
Employers when he was injured at work, named as such in his
Claim Petition and served with the Petition and later filings by
Claimant. They assert an inability to respond in [the Workers’
Compensation Automation and Integration System (WCAIS)],
due to system constraints. Joinder should fix that. Claimant has
3
no access to their [federal employer identification numbers
(FEINs)]. No hearings held.
R.R. 23a (emphasis added).
On July 7, 2022, the WCJ held a hearing. Lace Building and Scranton
Lace objected to the joinder petition as untimely. They asserted that the claim
petition, which was timely filed, did not toll the statute of limitations as to them.
SCE raised the same objection. SWIF alleged that as of May 3, 2019, it did not
insure Employer.
Claimant offered into evidence, inter alia, the application for a
demolition permit submitted to the City of Scranton (City) that listed the property
owner as Lace Building. Claimant also offered the City’s letter denying Claimant’s
Right-to-Know Law2 request for the certificate of workers’ compensation insurance
coverage provided to the City by the contractor or subcontractor doing the
demolition of the Scranton Lace Factory. The City’s letter stated that the document
did not exist or was not in the custody or control of the City. Claimant also offered
SWIF’s underwriting file on Employer indicating that SWIF had issued a certificate
of insurance to Lace Building, which is located in the City. However, SWIF did not
issue a certificate to the City. The file also contained letters of October 28, 2019,
and November 19, 2019, in which SWIF informed Employer that its account was
delinquent and that a premium balance of $84,047 was owed.
SWIF offered a printout of its policy history with Employer. It showed
a SWIF policy covering Employer, which ran from June 27, 2018, to June 27, 2019,
and a policy cancellation date of April 21, 2019. The printout stated that SWIF
notified Employer and Lace Building of the policy cancellation. The printout did
not state that SWIF had notified the City.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
4
On July 13, 2022, the WCJ issued an order that an in-person hearing
would be held on October 20, 2022, “to consider the legal issue regarding coverage
raised by [d]efense counsel for any injury that occurred on May 3, 2019, with regard
to any carrier responsibility.” R.R. 340a (emphasis added).
At the October 20, 2022, hearing, SWIF stated that it had cancelled
Employer’s policy on April 21, 2019, weeks before the date of injury. The WCJ
then asked Claimant’s counsel if he “would agree that the carrier, SWIF, is out.”
Hearing Transcript, 10/20/2022, at 8-9 (H.T. __); R.R. 309a-10a. Claimant’s
counsel answered “no” and argued that SWIF is still “on the hook,” noting that SWIF
did not issue a certificate of insurance to the City, as required by Section 302(e) of
the Act, 77 P.S. §462.2.3 H.T. 9-11; R.R. 310a-12a. As a result, the City was not
notified of the policy cancellation and, thus, did not issue a stop-work order to
Employer. SWIF’s counsel responded that the statute does not state that policy
coverage can be reinstated even if the insurer has violated Section 302(e) of the Act.
Counsel for Lace Building, Scranton Lace, and SCE also attended the
October 20, 2022, hearing and requested dismissal of the joinder petition as filed
outside the three-year statute of limitations.
At the conclusion of the October 20, 2022, hearing, the WCJ ordered
“mandatory mediation.” H.T. 29; R.R. 330a. He stated that “[i]f you don’t settle it,
you’re going to give me a brief and I’m going to issue a decision. We’re going to
bifurcate.” H.T. 32; R.R. 333a (emphasis added).
On October 31, 2022, the WCJ issued an order, noting that the parties
“have scheduled a voluntary mediation” with another WCJ, and stating that
[s]hould the mediation prove unsuccessful, an interim briefing
schedule will issue with regard to the pending motions to dismiss
3
Added by the Act of July 2, 1993, P.L. 190.
5
the additional Defendants identified in the Joinder Petition. A
ruling on the motions will follow, after which a final hearing will
be scheduled.
R.R. 343a (emphasis added).
On January 17, 2023, the WCJ issued another order stating that “an
interim briefing schedule on the Joinder Petition shall issue on February 13, 2023.”
R.R. 346a (emphasis added). That order required briefs from all parties by April 28,
2023.4
By order of July 3, 2023, the WCJ dismissed SWIF from the
proceeding, finding that as of May 3, 2019, the date of Claimant’s injury,
Employer’s policy had been cancelled for non-payment of premium. The WCJ also
dismissed Lace Building, Scranton Lace, and SCE. The WCJ found that the claim
petition’s identification of Lace Building, Scranton Lace, and SCE as statutory
employers did not constitute a claim against them, and Claimant did not file separate
claim petitions against them within the three-year statute of limitations. Likewise,
the joinder petition was filed outside the three-year period and, thus, untimely.
Nevertheless, the WCJ acknowledged that had Employer or SWIF filed the joinder
petition, it would not have been barred by the statute of limitations.
Board Adjudication
Claimant appealed to the Board, and it affirmed the WCJ. The Board
held that naming Lace Building, Scranton Lace, and SCE in the claim petition did
not toll the statute of limitations. The Board explained that “[t]he claim proceeding
is captioned as against [Employer],” and, thus, Lace Building, Scranton Lace, and
SCE were not listed in the Department’s notice of assignment. Board Adjudication,
4
The WCJ’s briefing schedule order is not in the certified record, but its terms are recited in
Claimant’s brief without dispute from the other parties. See Claimant Brief at 17.
6
4/24/2024, at 6. Likewise, the joinder petition did not toll the statute of limitations.
The applicable regulation requires a joinder petition to be filed “no later than 20 days
after the first hearing at which evidence is received regarding the reason for which
joinder is sought, unless the time is extended by the judge for good cause shown.”
34 Pa. Code §131.36(d). The Board conceded that the joinder petition satisfied the
regulation’s time requirement, but it concluded that the deadline in Section 315 of
the Act, 77 P.S. §602, prevailed over the deadline in the regulation. Claimant filed
his claim petition against Employer one day before the expiration of the three-year
statute of limitations, and he “could have filed against all named defendants at the
time of the original filing.” Board Adjudication at 7.
The Board affirmed the WCJ’s dismissal of SWIF from the proceeding
because SWIF’s printout showed that it had cancelled Employer’s workers’
compensation policy on April 21, 2019. The Board rejected Claimant’s argument
that SWIF’s failure to issue a certificate of insurance to the City under Section 302(e)
of the Act, 77 P.S. §462.2, may have rendered SWIF’s cancellation of the policy
invalid.
Finally, the Board rejected Claimant’s assertion that the WCJ’s
dismissal of SWIF was premature. Although Claimant did not have the opportunity
to take testimony from a SWIF representative on the still pending claim against
Employer, “[t]he matter was pending for months and the parties, including SWIF,
made their positions clear and submitted evidence in support.” Board Adjudication
at 9.
Claimant petitioned for this Court’s review.
7
Appeal
On appeal,5 Claimant raises four issues for our review, which we
combine into three for clarity.6 First, Claimant argues that the Board erred in holding
5
In reviewing the Board’s adjudication, this Court determines whether constitutional rights were
violated, errors of law were committed, or necessary findings of fact were supported by substantial
evidence. Stepp v. Workers’ Compensation Appeal Board (FairPoint Communications, Inc.), 99
A.3d 598, 601 n.6 (Pa. Cmwlth. 2014).
6
Claimant lists the following issues in the Statement of Questions Involved:
1. Whether inclusion of a claim against alleged statutory employers, in a timely
filed Claim Petition against the direct employer, is sufficient to preserve the claim
against them, where they are clearly identified as entities who had contracted with
the direct employer and were alleged to be Claimant’s statutory employers, who
would be liable to him if the direct employer had no insurance, and the Claim
Petition was then properly served upon them, as required for service of a Claim
Petition. []
2. Whether a Petition for Joinder of alleged statutory employers is timely, although
more than [three] years post injury, where it is filed by Claimant prior to the First
Hearing, contained the same allegations concerning the alleged statutory employers
as contained in the timely filed and served Claim Petition and the Joinder Rule
applies to any party, permits a Joinder Petition be filed within 20 days after a First
Hearing, provides that a Joinder Petition amends the original Claim Petition and
the amendment has been found to relate back to the time of filing of the original
claim petition. []
3. Whether cancellation of coverage by [SWIF] was invalid and it is liable for
payment of Workers’ Compensation Benefits to Claimant, where it failed to
provide a certificate of insurance and notice of the cancellation of the insured
Employer’s workers’ compensation to the [m]unicipality that issued a construction
permit to its insured employer, as required by [Section 302(e)(3)-(4) of the Act,] 77
P.S. §462.2(3)[-](4), which would have allowed the municipality to revoke that
permit until coverage was reinstated. []
4. Whether adjudication of the issue of SWIF’s liability was in violation of the rules
for [workers’ compensation] proceedings and was not ripe for decision as it
occurred without a Motion being filed by SWIF, before testimony was taken,
without notices of closing the record and without notice that the issue would be
decided with the Motions to Dismiss filed by the alleged statutory employers
concerning the Joinder Petition. []
Claimant Brief at 4-5. We consider issues three and four together.
8
that he did not timely file a claim against Lace Building, Scranton Lace, and SCE.
Second, Claimant argues that the Board erred in holding that his petition to join Lace
Building, Scranton Lace, and SCE to the claim proceeding was untimely under
Section 315 of the Act. Third, Claimant argues that the Board erred in affirming the
WCJ’s dismissal of SWIF prior to completion of discovery. We address these issues
ad seriatim.
I. Claim Petition Against the Statutory Employers
In his first issue, Claimant argues that the Board erred in holding that
his claim petition was untimely as to Lace Building, Scranton Lace, and SCE. The
claim petition specifically identified them as “statutory employer[s]” that may be
“liable to Claimant under the [A]ct in the event that [Employer] does not/did not
have Pennsylvania Workers’ Compensation insurance[.]” R.R. 5a. The claim
petition was served on all three putative statutory employers. Neither the Act nor
the Department regulations specify a process for pursuing a claim against a statutory
employer. However, the Department’s regulation generally requires a written
petition “in the form prescribed by the Department[]” with “material facts on which
a cause of action or defense is based [] stated in a concise and summary form.” 34
Pa. Code §131.32(a), (d). This is exactly what Claimant did: he used the claim form
prescribed by the Department to name the “three alleged statutory employers[.]”
Claimant Brief at 29. There is no rule that he had to file a separate claim petition
against each putative statutory employer.
Claimant contends that the Act must be liberally construed in favor of
injured workers, and it has been consistently held that the procedural rules governing
workers’ compensation proceedings are not to be applied with the exactitude
required of the Pennsylvania Rules of Civil Procedure. “[I]f a petition alleges facts
upon which a party would be entitled to relief under any provision of the Act, the
9
petition will be considered properly filed and will be considered under the
appropriate section.” Claimant Brief at 29-30 (citing Pittsburgh Press Company v.
Workmen’s Compensation Appeal Board (Pecora), 475 A.2d 972, 973 (Pa. 1984)
(Pecora) (holding that labeling a request for reinstatement as a petition to “Set Aside
Final Receipt” was acceptable so long as the evidence proved a basis for
reinstatement)).
In short, Claimant argues that the claim petition “was effective in
preserving” his claim against Lace Building, Scranton Lace, and SCE, particularly
since they were served with the claim petition. Claimant Brief at 21.
In response, Lace Building and Scranton Lace argue that Clamant did
not file a claim petition against them before the statute of limitations had run. The
Department’s notice of assignment named only Employer as a defendant. Thus,
Lace Building, Scranton Lace, and SCE were not required to file an answer.
Claimant “could have and should have” filed a separate claim petition against Lace
Building and Scranton Lace when he filed the claim petition against Employer. Lace
Building and Scranton Lace Brief at 12-13.7 Claimant failed to do so.
We begin with the provisions of the Act relevant to the process for
pursuing workers’ compensation claims. Section 410 of the Act states, in pertinent
part, as follows:
If, after any injury, the employer or his insurer and the employe
or his dependent, concerned in any injury, shall fail to agree upon
the facts thereof or the compensation due under this act, the
employe or his dependents may present a claim petition for
compensation to the department.
77 P.S. §751 (emphasis added). Section 402 of the Act further provides:
7
SCE has separate counsel. However, its legal position aligns with that of Lace Building and
Scranton Lace.
10
All proceedings before any workers’ compensation judge, except
those for which an informal conference has been applied for as
provided by section 402.1, shall be instituted by claim petition or
other petition as the case may be or on the department’s own
motion, and all appeals to the board, shall be instituted by appeal
addressed to the board. All claim petitions, requests for informal
conferences and other petitions and appeals shall be in writing
and in the form prescribed by the department.
77 P.S. §711 (emphasis added).
The Department’s regulation also addresses the use of petitions.
Section 131.31(a) states as follows:
(a) All proceedings, except challenges under sections 413(c) and
413(d) of the act (77 P.S. §§774.2[, added by the Act of July 1,
1978, P.L. 692 (regarding suspension of compensation)] and
774.3[, added by the Act of June 24, 1996, P.L. 350 (regarding
modification of compensation)]), shall be initiated by petition.
34 Pa. Code §131.31(a) (emphasis added). The Department’s regulation further
states, in pertinent part, as follows:
(a) Petitions shall be in the form prescribed by the Department.
(b) Any petition, filed in accordance with this chapter, shall be
filed with the Department as prescribed by the form. If there is
no applicable Department petition form available, an original of
the petition shall be filed with the Department. The Department
will serve a notice of assignment specifying the judge to whom
the petition has been assigned. The notice will be served on the
parties named in the petition.
(c) Concurrently with filing the petition with the Department, the
moving party shall serve a copy of the petition on all other
parties, including the insurance carrier, if the insurance carrier is
known, and on the attorneys of all other parties, if the attorneys
are known.
(d) The material facts on which a cause of action or defense is
based shall be stated in a concise and summary form.
....
11
34 Pa. Code §131.32 (emphasis added).
The above-cited provisions do not require the filing of a separate claim
petition against each potential statutory employer. The rules are rather simple: a
claimant who wishes to institute a proceeding before a WCJ shall file a “claim
petition or other petition as the case may be,” “in writing and in the form prescribed
by the department,” Section 402 of the Act, 77 P.S. §711, and present “in a concise
and summary form,” “the material facts on which a cause of action or defense is
based[.]” 34 Pa. Code §131.32(d). A single injury does not require multiple
petitions.
Lest there be any doubt, the Department’s regulation contemplates that
a petition can name more than one party. It states, for example, “[t]he Department
will serve a notice of assignment specifying the judge to whom the petition has been
assigned. The notice will be served on the parties named in the petition.” 34 Pa.
Code §131.32(b) (emphasis and bold added). Likewise, it states that “the moving
party shall serve a copy of the petition on all other parties, including the insurance
carrier[.]” 34 Pa. Code §131.32(c) (emphasis and bold added).
Here, Claimant filed a claim petition “in writing and in the form
prescribed by the department” and stated the material facts “in a concise and
summary form.” See 77 P.S. §711, 34 Pa. Code §131.32(d). That petition named as
parties Lace Building, Scranton Lace, and SCE; gave their business address; and
alleged that they “are the statutory employer of the Claimant[.]” R.R. 5a. Further,
Claimant served the claim petition on Employer, SWIF, Lace Building, Scranton
Lace, and SCE, R.R. 6a, and this service complied with 34 Pa. Code §131.32(c) (“the
moving party shall serve a copy of the petition on all other parties, including the
insurance carrier” (emphasis added)).
12
Claimant sufficiently stated a claim against the putative statutory
employers, Lace Building, Scranton Lace, and SCE, in his claim petition of May 2,
2022. The Department was required to serve its notice of assignment on all “the
parties named in the petition.” 34 Pa. Code §131.32(b). Because the Department
did not do so, Lace Building, Scranton Lace, and SCE were unable to “respond in
WCAIS,” which prompted Claimant’s joinder petition. R.R. 23a. This problem was
occasioned by the Department’s failure, not by Claimant.
It has been long established that “the form of the petition filed is not
controlling where the facts warrant relief, and that if a claimant is entitled to relief
under any section of the Act, his petition will be considered as filed under that
section.” Pecora, 475 A.2d at 973. The forms prescribed for workers’ compensation
claims are not strictly applied. “If one party effectively puts the adverse party on
notice as to the theory of relief which it is seeking, the referee will be authorized to
grant the relief requested.” Anzaldo v. Workmen’s Compensation Appeal Board
(M&M Restaurant Supply Company), 667 A.2d 488, 491 (Pa. Cmwlth. 1995)
(Anzaldo).
In sum, Claimant’s claim petition put Lace Building, Scranton Lace,
and SCE on notice of his “theory of relief” against them as statutory employers.
Anzaldo, 667 A.2d at 491, thereby tolling the statute of limitations. The Board erred
in otherwise holding.
II. Timeliness of Joinder Petition
Claimant argues, next, that the Board erred in holding that his joinder
petition against Lace Building, Scranton Lace, and SCE did not toll the statute of
limitations. Claimant contends that assuming, arguendo, his claim petition did not
preserve his claim against the alleged statutory employers, his timely filed joinder
petition did so. Claimant Brief at 38 (citing DiLaqua v. City of Philadelphia Fire
13
Department (Workers’ Compensation Appeal Board), 268 A.3d 1, 14 n.17 (Pa.
Cmwlth. 2021)). Claimant observes that “even the more stringent rules of pleading
in civil actions permit the amendment of complaints after the statute of limitations
has run to amplify or clarify a claim or to correct technical defects, where the
essential facts supporting the claim exist in the original complaint.” Claimant Brief
at 38-39.8 Lace Building, Scranton Lace, and SCE respond that to allow their joinder
to the claim proceeding would nullify the statute of limitations.
We begin with a review of the statute of limitations. Section 315 of the
Act provides:
In cases of personal injury all claims for compensation shall be
forever barred, unless, within three years after the injury, the
parties shall have agreed upon the compensation payable under
this article; or unless within three years after the injury, one of
the parties shall have filed a petition as provided in article four
hereof.
77 P.S. §602 (emphasis added). Here, we consider the timeliness of a joinder
petition, on which the Department’s regulation states as follows:
(a) A party desiring to join another defendant to assert a claim
relevant to the pending petition may do so as a matter of right by
filing a petition for joinder.
(b) A petition for joinder shall set forth the identity of employers
and insurance carriers sought to be joined and the reasons for
8
Claimant directs this Court to Kuisis v. Baldwin-Lima-Hamilton Corporation, 319 A.2d 914 (Pa.
1974), in which the Supreme Court held that the plaintiff’s strict liability claim was timely filed
even though the allegations about the defectively manufactured crane were added by amendment
after the statute of limitations had run. The Supreme Court found that the original complaint
contained allegations sufficient to state an implicit strict liability claim. Likewise, in Piehl v. City
of Philadelphia, 987 A.2d 146 (Pa. 2009), the Supreme Court held that a complaint’s caption could
be amended to add the Pennsylvania Department of Transportation, even after the statute of
limitations has run. This was because the Department of Transportation had been named
throughout the complaint and served with process.
14
joining a particular employer or insurance carrier as well as the
specific facts and the legal basis for the joinder.
....
(d) The petition for joinder form shall be filed with the
Department no later than 20 days after the first hearing at which
evidence is received regarding the reason for which joinder is
sought, unless the time is extended by the judge for good cause
shown.
....
(h) After joinder, the original petition shall be deemed amended
to assert a claim of the claimant against an additional defendant.
The additional defendant is liable to any other party as the judge
orders. The additional defendant shall have the same rights and
responsibilities under this chapter as the original defendant.
....
34 Pa. Code §131.36 (emphasis added).
In Sota Construction Services, Inc. v. Workers’ Compensation Appeal
Board (Czarnecki, Zawilla d/b/a Gorilla Construction), 224 A.3d 63 (Pa. Cmwlth.
2019) (Sota), this Court considered the application of the statute of limitations in
Section 315 of the Act to a joinder petition. Sota concerned a claim petition filed
against the Uninsured Employers Guaranty Fund (Guaranty Fund) because the
employer, a construction company, did not carry workers’ compensation insurance.
The Guaranty Fund filed a joinder petition against the general contractor to have it
held liable as a statutory employer. The claim petition was filed within the three-
year statute of limitations, but the joinder petition was filed after the statute of
limitations had run. The general contractor moved to strike the joinder petition as
untimely, and the WCJ granted the motion. The Board reversed, holding that the
joinder petition was timely under 34 Pa. Code §131.36(d).
On appeal, this Court affirmed the Board. It was undisputed that the
claim petition was filed within the three-year statute of limitations and that the
15
Guaranty Fund had “20 days after the first hearing” to file a joinder petition. 34 Pa.
Code §131.36(d). The Guaranty Fund did so within 13 days after the first hearing
at which the claimant testified that he was working for the subcontractor of a general
contractor when he was injured. We held that the three-year statute of limitations in
Section 315 of the Act did not preclude the joinder petition, explaining that
under [the general contractor’s] rationale, a claimant could file a
claim petition against [the Guaranty Fund] on the last day of his
three-year time limit to preclude [the Guaranty Fund] from
joining any additional defendants. Considering that [the
Guaranty Fund] would not have knowledge of the injury before
the claim petition was filed, and it would be effectively precluded
from joining the additional parties thereafter, [the Guaranty
Fund] would have no recourse against the putative liable parties.
Sota, 224 A.3d at 67.
Claimant argues that Sota is dispositive of the issue of whether his
joinder petition was timely. The Board held that Sota was distinguishable because
the joinder petition was filed by Claimant and not by Employer, as in Sota. Unlike
Sota, Claimant’s “delay in filing the [j]oinder [p]etition was not due to learning
something new regarding the identities of potential parties at the first hearing or
subsequent thereto.” Board Adjudication at 7. Claimant could have filed claim
petitions against the putative statutory employers when he filed the petition against
Employer. We reject the Board’s rationale.
Here, the claim petition named Lace Building, Scranton Lace, and SCE,
and it contained factual allegations sufficient to establish their liability as statutory
employer. The joinder petition was required only because Lace Building, Scranton
Lace, and SCE could not file answers in the WCAIS system. This impediment was
created by the Department’s decision not to serve the notice of assignments on them,
as required by 34 Pa. Code §131.32(b). Further, the Board’s holding cannot be
16
reconciled with the terms of the regulation, which does not state that only a defendant
can join another defendant to a claim proceeding. Rather, it states that “[a] party
desiring to join another defendant to assert a claim relevant to the pending petition
may do so as a matter of right[.]” 34 Pa. Code §131.36(a) (emphasis added).
Claimant is such “a party” and eligible to file a joinder petition “as a matter of
right[.]” Id.
Lace Building, Scranton Lace, and SCE argue that Viwinco v.
Workmen’s Compensation Appeal Board (Horner), 656 A.2d 566 (Pa. Cmwlth.
1995) (Viwinco), and CRL of Maryland, Inc. v. Workmen’s Compensation Appeal
Board (Hopkins), 627 A.2d 1238 (Pa. Cmwlth. 1993) (CRL), support the Board’s
conclusion. We disagree.
In Viwinco, 656 A.2d 566, the claim petition alleged that the claimant
sustained a work injury on September 4, 1991. The named employer filed a joinder
petition against the former insurance carrier, alleging that the claimant’s 1989 injury
was the actual cause of the 1991 injury. Because any claim arising from the 1989
injury was time-barred under Section 315 of the Act, this Court concluded that the
referee erred in granting the joinder petition. Similarly, in CRL, 627 A.2d 1238, this
Court found a joinder petition to be untimely because the underlying claim petition
was untimely. By contrast, here, Claimant’s claim petition naming Lace Building,
Scranton Lace, and SCE as having liability for his injury was timely filed. Simply,
Viwinco and CRL are distinguishable and provide no support for the Board’s
conclusion on the timeliness of Claimant’s joinder petition.
Finally, the Board’s adjudication cannot be reconciled with the
Department’s regulation, which authorizes the use of a joinder petition to amend the
“original petition.” 34 Pa. Code §131.36(h). Claimant’s joinder petition contained
the allegations and claims against Lace Building, Scranton Lace, and SCE that were
17
contained in the original claim petition. Claimant’s joinder petition was an
amendment to the claim petition authorized by 34 Pa. Code §131.32(h).
The Board erred in holding that the joinder petition was untimely filed.
The joinder petition simply amended the claim petition to correct the Department’s
error in not sending the notice of assignment to Lace Building, Scranton Lace, and
SCE so that they could file responses in the WCAIS system.
III. Dismissal of SWIF
In his third issue, Claimant argues that the Board erred in dismissing
SWIF from the proceedings for the stated reason that SWIF cancelled Employer’s
policy on April 21, 2019, for non-payment of premium. Claimant argues that SWIF
was required by Section 302(e) of the Act to issue the City a certificate of insurance
when the City issued the demolition permit to Employer. SWIF’s failure to do so
nullified its purported cancellation of coverage. Claimant also argues that the WCJ’s
decision was premature because he had not completed discovery on SWIF’s liability;
there was no notice that the record was to be closed; and there was no motion from
SWIF requesting its dismissal from the proceeding.
SWIF responds that its dismissal was proper. The Act does not require
an insurer to notify every municipality about the status of the workers’ compensation
coverage of a contractor to whom the municipality has issued a permit.9 It also
argues that a municipality must be notified of a policy cancellation only where the
insurer has issued a certificate to the municipality. See Section 302(e)(3) of the Act,
77 P.S. §462.2(3). SWIF argues that Claimant’s position lacks support in the Act
and that its dismissal came after “the parties had an opportunity to submit briefs
9
However, Lace Building, which did receive a certificate of insurance, is located in a single
municipality.
18
regarding their respective positions.” SWIF Brief at 15-16. Additional discovery
will not yield information relevant to SWIF’s liability for Claimant’s injuries.
The Act contains several provisions to ensure that construction workers
are protected by workers’ compensation coverage. Proof of insurance is required
before a municipality can issue certain permits. Section 302(e) of the Act states as
follows:
(1) Prior to issuing a building permit to a contractor, a
municipality shall require the contractor to present proof of
workers’ compensation insurance or an affidavit that the
contractor does not employ other individuals and is not required
to carry workers’ compensation insurance.
....
(3) Every municipality issuing a building permit shall be named
as a workers’ compensation policy certificate holder of a
contractor-issued building permit. This certificate shall be filed
with the municipality’s copy of the building permit. An insurer
issuing a policy which names a municipality as a workers’
compensation policy certificate holder pursuant to this section
shall be required to notify that municipality of the expiration or
cancellation of any such policy of insurance or policy certificate
within three working days of such cancellation or expiration.
(4) A municipality shall issue a stop-work order to a contractor
who is performing work pursuant to a building permit, upon
receiving actual notice that the contractor’s workers’
compensation insurance or State-approved self-insured status
has been cancelled. Also, if the municipality receives actual
notice that a permittee, having filed an affidavit of exemption
from workers’ compensation insurance, has hired persons to
perform work pursuant to a building permit and does not
maintain required workers’ compensation insurance, the
municipality shall issue a stop-work order. This order shall
remain in effect until proper workers’ compensation coverage is
obtained for all work performed pursuant to the building permit.
19
77 P.S. §462.2 (emphasis added). The Act separately obligates the contractor to
notify the municipality issuing the permit of the expiration or cancellation of the
policy of insurance. Section 302(g) of the Act states:
Should such policy of workers’ compensation insurance be
cancelled or expire during the duration of the work or should the
workers’ compensation self-insurance status change during the
said period, the contractor shall immediately notify, in writing,
the municipality, public body or political subdivision of such
cancellation, expiration or change in status.
77 P.S. §462.410 (emphasis added). Finally, Section 302(h) of the Act states:
Nothing in this act shall be the basis of any liability on part of the
municipality.
77 P.S. §462.5.11
Claimant contends that SWIF was required by Section 302(e) of the Act
to issue a certificate of insurance to the City when the City issued a demolition
permit. The Uniform Construction Code12 states that before a commercial structure
can be demolished, its owner must “first apply to the building code official and
obtain the required permit[.]” 34 Pa. Code §403.42(a). Claimant observes that
SWIF is “part of the [Department], which administers the Uniform Construction
Code and the [] Act.” Claimant Brief at 43. Simply, when SWIF issued the
certificate of its coverage of Employer to Lace Building, it should also have issued
10
Added by the Act of July 2, 1993, P.L. 190.
11
Added by the Act of July 2, 1993, P.L. 190.
12
Pursuant to Section 301(a)(1) of the Pennsylvania Construction Code Act, Act of November 10,
1999, P.L. 491, as amended, 35 P.S. §7210.301(a)(1), the Department promulgated regulations,
known as the Uniform Construction Code, codified at Title 34 of the Pennsylvania Code, Chapters
401, 403, and 405. The Pennsylvania Construction Code Act also required municipalities to adopt
the Uniform Construction Code as their municipal building code within 90 days of the publication
of the Uniform Construction Code in the Pennsylvania Bulletin. See Section 501(a)(2) of the
Pennsylvania Construction Code Act, 35 P.S. §7210.501(a)(2).
20
one to the City. Likewise, SWIF would have notified the City of the policy
cancellation as it did Lace Building, the other third party with an interest in
Employer’s policy.
Section 302(g) of the Act obligates the “contractor” to “notify, in
writing, the municipality . . . of [workers’ compensation insurance] cancellation,
expiration or change in status.” 77 P.S. §462.4. Section 302(e)(3) obligates the
insurer to “notify [the] municipality of the expiration or cancellation of coverage”
of the contractor. 77 P.S. §462.2(e)(3). Notably, the municipality is excused from
liability where a violation of Section 302 of the Act has occurred. See Section 302(h)
of the Act, 77 P.S. §462.5. It follows, Claimant argues, that either the insurer or its
policyholder can be held liable where a certificate of insurance either has not been
issued to the municipality or, if issued, the insurer has not notified the municipality
of the policy’s cancellation, as it would for all holders of a certificate of insurance.
The Act does not specify whether it was the duty of Employer, or the
duty of SWIF, to ensure that the City was “named as a workers’ compensation policy
certificate holder of a contractor-issued building permit.” Section 302(e) of the Act,
77 P.S. §462.2. The workers’ compensation policy itself may answer this question,
but it is not in the record because Claimant had not completed discovery when the
WCJ dismissed SWIF from the case.
Claimant argues that the WCJ’s dismissal of SWIF “was a premature
surprise” and not in accord with Department regulations. Claimant Brief at 49. The
Department’s regulation cited by Claimant governs the closing of the evidentiary
record and states, in relevant part, as follows:
(c) The evidentiary record is closed when the parties have
submitted all of their evidence and rested or when the judge has
closed the evidentiary record on a party’s motion or the judge’s
own motion. If the judge determines that additional hearings are
21
necessary, or that additional evidence needs to be submitted, or
if the judge schedules additional written or oral argument, the
evidentiary record may be held open by the judge. When the
judge determines that the evidentiary record is closed, the judge
will notify the parties that the evidentiary record is closed on the
record or in writing.
....
(e) A judge may close the evidentiary record on the judge’s own
motion even if all parties have not rested when the judge
determines that the parties have had reasonable opportunity to
present their case, provided that reasonable notice of the closing
of the evidentiary record has been given to all parties.
34 Pa. Code §131.101(c), (e) (emphasis added). The regulation further provides as
follows:
(a) Following the close of the evidentiary record and the hearing
of oral argument, if any, as provided in §131.102(a) (relating to
oral argument), the judge will issue a written decision, which will
contain findings of fact, conclusions of law and an appropriate
order based upon the entire evidentiary record.
34 Pa. Code §131.111(a) (emphasis added).
At the October 20, 2022, hearing, the parties agreed to address only the
legal issues. H.T. 28, 32; R.R. 329a, 333a. Those legal issues concerned “coverage
raised by [d]efense counsel for any injury that occurred on May 3, 2019, with regard
to any carrier responsibility,” R.R. 340a (emphasis added), and the timeliness of the
joinder petition. At that hearing, Claimant’s counsel refused to “agree that the
carrier, SWIF, is out.” H.T. 8-9; R.R. 309a-10a. Claimant’s counsel argued that
SWIF is still “on the hook.” H.T. 10-11; R.R. 311a-12a. The WCJ’s subsequent
order of October 31, 2022, stated that “[s]hould the mediation prove unsuccessful,
an interim briefing schedule will be issued with regard to the pending motions to
dismiss the additional Defendants identified in the [j]oinder [p]etition.” R.R. 343a
22
(emphasis added). That briefing did not concern SWIF’s liability, and SWIF had
not filed a motion to dismiss. While the WCJ “may close the evidentiary record on
the judge’s own motion[,]” he must give “reasonable notice of the closing of the
evidentiary record . . . to all parties.” 34 Pa. Code §131.101(e). The WCJ did not
give such notice when he dismissed SWIF from the proceeding, and his decision to
dismiss occurred before “the close of the evidentiary record,” in violation of the
Department’s regulation at 34 Pa. Code §131.111(a). Thus, the WCJ’s decision to
close the record and dismiss SWIF was not authorized by the governing regulation.
Generally, property and casualty insurers must give advance written
notice to policyholders before a mid-term policy cancellation can occur.13 Unless
the insurer issues a “cancellation notice that complies with the provisions set forth
in this act, insurance coverage will remain in effect.” Section 3(b) of the Act of July
3, 1986, P.L. 396, No. 86, 40 P.S. §3403(b) (Act 86).14 See generally Cain v.
Department of Transportation, Bureau of Motor Vehicles, 811 A.2d 38, 42 (Pa.
Cmwlth. 2002) (notice of cancellation for nonpayment of premium “must be issued
13
A workers’ compensation insurance policy is a type of commercial property and casualty
insurance. See Section 113.81 of the Insurance Department’s regulations, 31 Pa. Code §113.81
(defining “[c]ommercial property and casualty risk insurance” as one that includes “workers’
compensation risks”).
14
As explained in treatise authority, a standard workers’ compensation policy states, among other
things, as follows:
2. We may cancel this policy. We must mail or deliver to you not less than ten
days advance written notice stating when the cancellation is to take effect. Mailing
the notice to you at your mailing address . . . will be efficient to prove notice.
See David B. Torrey & Andrew E. Greenberg, 9 WEST’S PENNSYLVANIA PRACTICE SERIES,
WORKERS’ COMPENSATION §23:71 (4th ed. 2024). Further, “[a]ccording to the Insurance
Department, workers’ compensation carriers must abide by” the “principal” insurance statute
governing mid-term policy terminations, which is Section 3(b) of Act 86, 40 P.S. §3403. 9 WEST’S
PENNSYLVANIA PRACTICE SERIES, WORKERS’ COMPENSATION §23:71. When adjudicating a
cancellation dispute, the WCJ and courts must consider whether the carrier’s notice was adequate.
Id.
23
or the cancellation will not be effected”) (emphasis in original); Royal Indemnity
Company v. Adams, 455 A.2d 135, 142 (Pa. Super. 1983) (because insurance policy
conditioned insurer’s right to cancel for non-payment of premium upon “notifying
the insured at least ten days prior to the cancellation,” insurer’s failure to do so
results in continuation of coverage). At this point, it has not been established that
SWIF gave advance written notice to Employer in accordance with the policy
provisions or the statute. The SWIF printout states Employer’s policy was cancelled,
but that printout does not prove that SWIF complied with the requirement of advance
written notice.
Questions about the efficacy of SWIF’s cancellation of Employer’s
workers’ compensation policy remain unanswered. SWIF did not issue a certificate
of insurance to the City as required under Section 302(e) of the Act, let alone notice
of its purported cancellation. Thus, the cancellation may not be effective. SWIF
contends that it was Employer’s responsibility to have the certificate issued to the
City. However, it does not point to any authority, such as a policy provision, statute
or regulation, to support this contention. Discovery may also yield information
relevant to whether Employer’s policy was properly cancelled mid-policy term.
Because the dismissal of SWIF was premature, the Board’s order in this regard will
be vacated and the matter remanded for completion of discovery on whether SWIF
has satisfied its contractual and statutory duties and effected a lawful termination of
Employer’s workers’ compensation insurance policy.
Conclusion
We hold that the claim petition was sufficient to make Lace Building,
Scranton Lace, and SCE parties to the claim proceeding and that the joinder petition
effected a timely filed amendment to the claim petition. We reverse the Board’s
adjudication dismissing the joinder petition and remand the matter to the Board for
24
further remand to the WCJ to consider the merits of the claim petition as amended
by the joinder petition.
We hold, further, that the WCJ’s decision to dismiss SWIF from the
proceeding was premature because discovery had not been completed. We vacate
the Board’s adjudication affirming the WCJ’s dismissal of SWIF from the
proceeding and remand the matter to the Board for a further remand to the WCJ to
enable the parties to complete discovery on whether SWIF’s cancellation of
workers’ compensation coverage was legally effective, under the policy and under
the Act.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
Judge Fizzano Cannon did not participate in the decision in this case.
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank Jordan, :
Petitioner :
:
v. : No. 621 C.D. 2024
:
Lost Forest Development, LLC, :
State Workers’ Insurance Fund, :
Lace Building Affiliates, LP, :
Scranton Lace Building, LLC, and :
SCE Environmental Group, Inc. :
(Workers’ Compensation Appeal Board), :
Respondents :
ORDER
AND NOW, this 19th day of August, 2025, the adjudication of the
Workers’ Compensation Appeal Board, dated April 24, 2024, in the above-captioned
matter, is REVERSED in part and VACATED in part. The matter is REMANDED
to the Workers’ Compensation Appeal Board to further remand it to the Workers’
Compensation Judge for further proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita