No. 312 April Term, 1979, Appeal from Order in the Court of Common Pleas of Washington County, Civil Action - Law, No. 281 December Term, 1978, A.D.
Stephen P. McCloskey, Washington, for appellant.
C. Jerome Moschetta, Washington, for appellee.
Price, Hester and Cavanaugh, JJ.
[ 279 Pa. Super. Page 41]
Presently before the court is the appeal of appellant, Erie Insurance Exchange (sometimes Erie) from the order of the lower court dated March 6, 1979, sustaining appellee's preliminary objection in the nature of a demurrer and dismissing appellant's complaint.
The facts may briefly be summarized as follows:
Erie was appellee's No-Fault provider pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act (sometimes the Act), 40 P.S. 1009.101, etc., on October 21, 1977, at which time appellee was injured in a motor vehicle accident. As a result of said accident, appellee, a member of the United Mine Workers of America, sustained personal injuries and was unable to engage in his employment as a coal miner. From October 29, 1977 through February 15, 1978, appellee was paid No-Fault work loss benefits pursuant to the Personal Injury Protection (PIP) provisions of the No-Fault policy of insurance. However, from December 8, 1977 until March 27, 1978, appellee's union, the United Mine Workers of America, was engaged in a strike with the coal operators.
Appellant thus filed its complaint in assumpsit alleging that due to the strike, work would not have been available
[ 279 Pa. Super. Page 42]
for appellee and, as a result, appellant is entitled to reimbursement of the wage loss benefits paid to appellee from December 8, 1977 (the strike date), through February 15, 1978 (the date when appellant terminated appellee's wage loss payments). Basically, appellant is seeking reimbursement of the alleged overpayments made by it on the theory that appellee was not rightfully entitled to work loss benefits during that period of time (December 8, 1977 through February 15, 1978). Appellant argues that appellee sustained no compensable work loss during that period of time. Appellant contends that under the applicable provisions of the Act, an individual who may otherwise be eligible for wage loss benefits and who is a member of a labor union which engages in a strike subsequent to the individual's injury, is not entitled to recover work loss benefits during the time his labor union is engaged in said strike. Succinctly stated, appellant contends that appellee is not entitled to wage loss benefits during the period of the work stoppage, notwithstanding appellee's otherwise entitlement, because appellee would not have been earning wages during said strike.
The issue raised in the instant case is one of first impression in the Commonwealth under the new ...