Q: If I sue my former employer and get a judgment after they didn’t appear for the hearing, can that default judgment be thrown out?
Choosing the proper type of claim against a client’s employer–such as personal injury vs. workman’s compensation—is only part of an attorney’s job. Knowing and satisfying the procedural rules that govern the different proceedings is another equally important part of the job in any kind of lawsuit. No matter how strong your case may be, it will be vulnerable to challenge if you fail to follow the rules. That’s why it’s important to seek legal counsel from an attorney experienced in personal injury law and workman’s compensation law.
Workman’s Compensation (“Worker’s Comp”) is designed to provide prompt medical and financial assistance to an employee injured on the job in Pennsylvania. The process provides for payment of medical bills for reasonable and necessary treatment relating to the employee’s work injury. If the worker is partially or totally disabled, worker’s comp also provides for weekly or biweekly payments of compensation benefits to replace wages lost as a result of the disability. Although the vast majority of cases in which an employee has been injured on the job fall within the realm of workmen’s compensation, there are some situations where a personal injury action is appropriate.
In 2010, an iron worker obtained a default judgment in a personal injury lawsuit against his former employer. In support of the employer’s recent motion to open the default judgment and allow it to have its day in court, the employer’s attorneys allege the following laundry list of procedural defects and errors, namely that the plaintiff failed to:
- ·officially serve the complaint;
- provide the 10-day default notice;
- provide notice of arbitration hearings and
- provide notice of the arbitrators’ award ($50,000 judgment in favor of plaintiff).
Further, the employer claimed that since the employee plaintiff was allegedly injured on a job site in a Philadelphia Shop-Rite supermarket his claim should be governed by Pennsylvania’s Workmen’s Compensation Act and that the personal injury claim should be dismissed with prejudice for lack of subject matter jurisdiction (as well as lack of jurisdiction over the employer).
Laws vary from state to state. But generally if a lawsuit is dismissed with prejudice, the plaintiff is not permitted to start a new lawsuit against the same defendant seeking the same relief based on the same incident or facts. In a dismissal without prejudice, the plaintiff can often restart a new lawsuit depending on certain factors, including whether a new action would be time-barred due to the statute of limitations for the claim expiring. If the claim is barred and no tolling provision extending the time to commence a lawsuit applies, a plaintiff may be left without further recourse– which underscores the importance of abiding by all applicable procedural rules from the outset.
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