The opinion
KELLY, Judge,
concurring:
I agree with the majority’s affirmance of the Philadelphia County Common Pleas Court’s dismissal of the appellant’s petition seeking a declaratory judgment and had I ad *261 dressed the merits I would have resolved them in exactly the same manner; however, I do not believe that it was necessary for us to reach the merits as the declaratory judgment action should have been dismissed outright by the trial court. The subrogation issue which is the subject of this declaratory judgment action was already resolved by a workmen’s compensation referee and was pending appeal before the Workmen’s Compensation Appeal Board (WCAB), when the appellant sought a declaratory determination of the issue in Common Pleas Court.
The appellant brought this declaratory judgment action in a bold attempt to use the Declaratory Judgment Act, 42 Pa.C.S.A. 742, as a means of bypassing both the WCAB and the Commonwealth Court who has eventual appellate jurisdiction over all final orders emanating from state administrative agencies. See 42 Pa.C.S.A. 763. The reason for the appellant’s attempted avoidance of the WCAB and Commonwealth Court and the respective acknowledged expertise in workmen’s compensation matters is the overwhelming amount of Commonwealth Court precedent against the appellant’s proposition that an employer is not entitled to subrogation when there is a settlement of a third party claim, 1 as the WCAB is required to use Commonwealth Court precedent in all of its determinations. 2 Because of this fact, the appellant has attempted to use the Declaratory Judgment Act as a tool to avoid the WCAB while at the same time causing a split in appellate authority on the issue of the employer entitlement to subrogation when an injured employee receives a settlement in a third party action.
However, the provisions of the Declaratory Judgment Act preclude a declaratory judgment action in Common Pleas *262 Court where the relief sought is within the exclusive jurisdiction of another tribunal. 42 Pa.C.S.A. § 7541(c)(2). As an appeal from an order of the workmen’s compensation referee is within the exclusive jurisdiction of the WCAB, 77 Pa.C.S.A. § 853, the trial court should have dismissed this declaratory action outright.
In Prudential Property & Casualty v. McDaniel, 342 Pa.Super. 557 , 493 A.2d 731 (1985), this Court held that relief by declaratory judgment was not available with respect to a proceeding involving an appeal from an order of a tribunal. We further stated that when an ancillary proceeding can be realized to resolve the issues raised in a declaratory judgment proceeding, the declaratory judgment proceeding should be dismissed. The Commonwealth Court reached the same conclusion in Myers v. Commonwealth of Pennsylvania, Department of Revenue, 55 Pa.Cmwlth. 509 , 423 A.2d 1101 (1980), where the court held that when a proceeding lies within the exclusive jurisdiction of a state administrative agency, declaratory relief is unavailable under the Declaratory Judgment Act.
A workmen’s compensation referee is a “tribunal” within the meaning of the exception to the Declaratory Judgment Act providing that relief shall not be available with respect to proceedings involving an appeal from an order of a tribunal. See Pennsylvania Assigned Risk Plan v. Grode, 106 Pa.Cmwlth. 472 , 526 A.2d 849 (1987); Hudson v. Union County, 50 Pa.Cmwlth. 378 , 413 A.2d 1148 , appeal dismissed 505 Pa. 604 , 482 A.2d 1273 (1980); 42 Pa.C.S.A. § 7541(c)(3). Because the subrogation issue has already been decided by a tribunal in an ancillary proceeding, I would follow Prudential Property & Casualty v. McDaniel, supra, and dismiss the declaratory judgment action outright without addressing the merits. I believe the interpretation of the Declaratory Judgment Act as dictated in Prudential Property & Casualty v. McDaniel, supra and Myers v. Commonwealth of Pennsylvania, Department of Revenue, supra is the correct one as these cases compel the *263 litigants to follow and exhaust their administrative remedies, rather than use the Declaratory Judgment Act as a means of bypassing them.
Moreover, the outright dismissal of the appellant’s declaratory judgment petition would not create any injustice toward the appellant. A decision as to the merits of the subrogation issue was already rendered by the workmen’s compensation referee and was pending administrative appeal before the WCAB at the time the appellant sought a declaratory determination of the appellee’s right to subrogation, after which the appellant still has full access to an appeal before the Commonwealth Court.
Finally, a further benefit gained by our following of Prudential Property & Casualty v. McDaniel, supra and Myers v. Commonwealth of Pennsylvania, Department of Revenue, supra, is the elimination of the possibility of litigants using the Declaratory Judgment Act as a means of avoiding the exclusive jurisdiction of Commonwealth Court over all final orders emanating from state administrative agency tribunals, by filing for declaratory relief while the matter is pending before an administrative appeals board, then using our exclusive jurisdiction under 42 Pa.C.S.A. § 742 over all final orders from Common Plea Courts to effectuate a split in appellate authority on matters which properly belong before the various state administrative tribunals over whose final orders appellate jurisdiction rests in the capable hands of Commonwealth Court.
. See Hill v. Workmen’s Compensation Appeal Board (J.D. Judski Assoc.), supra; Swink v. WCAB (Burrell Constr. and Supply), 97 Pa. Cmwlth. 623, 510 A.2d 860 appeal granted, 515 Pa. 590 , 527 A.2d 549 appeal dismissed, 517 Pa. 504 , 539 A.2d 348 (1986); Heiser v. Workmen’s Compensation Appeal Board, supra; Reese by Reese v. Workmen’s Compensation Appeal Board (Penn Nutrients Inc.), 95 Pa. Cmwlth. 325, 505 A.2d 405 (1986).
. Armstrong County v. Workmen’s Compensation Appeal Board, 81 Pa.Cmwlth. 474 , 473 A.2d 755 (1984).