The opinion
CONCURRING STATEMENT BY
KLEIN, J.:
¶11 fully agree with the thoughtful and thorough opinion of Judge Musmanno. I write separately only to note that the issue of whether PEBTF was ever an ERISA-qualified plan and whether it is ever entitled to subrogation has not yet been decided by our appellate courts. PEBTF started as a governmental plan, and as such was not subject to ERISA. See Haney v. Commonwealth of Pennsylvania Treasur *20 er’s Office, Civ. A. No. 91-6927, 1992 WL 209265 , 1992 U.S. Dis. LEXIS 12687 (E.D.Pa. Aug.18, 1992); see also 29 U.S.C. § 1003 (b)(1). It was only in March, 1994 that PEBTF extended its plan coverage to some non-governmental employees and started filing forms with ERISA when it got a non-committal answer as to whether or not it was covered.
¶ 2 One issue is whether the number of non-governmental employees was ever more than a de minimus number, a question not answered by ERISA. Approximately 1,000 of the 85,000 plan members were non-governmental employees. One view is that the small percentage of covered non-governmental employees (1,000) relative to the total plan participants (85,-000) means that there are only a de mini-mus number of non-governmental employees. The other view is that 1,000 is a large enough absolute number of employees to go beyond the “de minimus” classification.
¶ 3 Another related issue was addressed by a divided panel of this Court in Scalice v. PEBTF, 854 A.2d 987 (Pa.Super.2004). I note that the Pennsylvania Supreme Court granted a petition for allowance of appeal in Scalice on November 18, 2004, at No. 395 WAL 2004 and listed the case for argument on March 7, 2005, at 38 WAP 2004.
¶ 4 The Scalice majority held that because the U.S. Department of Labor did not challenge the filing of PEBTF under ERISA, after non-governmental employees were included in the plan,-that converted the plan into an ERISA plan. In dissent, Judge Kate Ford Elliott took the position that if a plan is created as a governmental plan (and thus exempt from ERISA), it remains a governmental plan so long as the governmental unit that created it does not abandon it. In support of this proposition, Judge Ford Elliott cited a memorandum decision from the Federal Court for the Eastern District of Pennsylvania, Triplett v. United Behavioral Health Systems, Inc., 1999 WL 238944 (E.D.Pa.1999) (memorandum decision). Scalice, 854 A.2d at 993-94 .
¶ 5 In the instant case, because Wimer made no objection to the subrogation claim for the small amount of benefits paid ($186) before it was clear that PEBTF was no longer an ERISA plan, I believe that the majority was correct in deciding this case on the issue of the timing of the payments and not reaching those issues listed above. I think it is important to note that those issues may arise in other circumstances and still must be considered, at least until there is a definitive ruling by the Pennsylvania Supreme Court, hopefully in Scalice .