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CHARLES MITCHELL v. PHILADELPHIA ELECTRIC COMPANY. SEPTA (10/10/80)

filed: October 10, 1980.

CHARLES MITCHELL, APPELLANT,
v.
PHILADELPHIA ELECTRIC COMPANY. SEPTA, PARTICIPATING PARTY



No. 790 October Term 1979, Appeal from the Order entered April 3, 1979, of the Court of Common Pleas of Philadelphia County, Trial Division - Equity, No. 4862 September Term, 1978.

COUNSEL

Herbert Braker, Philadelphia, for appellant.

Charles W. Craven, Philadelphia, for appellee.

Norman Hegge, Jr., Philadelphia, for participating party.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 281 Pa. Super. Page 454]

On June 23, 1977, Charles H. Mitchell, appellant herein, was injured while a passenger in a truck owned by his employer, Philadelphia Electric Company. The accident occurred when an uninsured motor vehicle, owned by Hyton Industrial Scrap, Inc., struck the Philadelphia Electric Company truck. The electric company was self-insured.

At the time of the accident the law of Pennsylvania, with regard to uninsured motorists, provided that:

(a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as are fixed from time to time by the General Assembly in section 1421 of article XIV of "The Vehicle Code," act of April 29, 1959 (P.L. 58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom, Provided, that:

(1) An owner or operator of (i) any motor vehicle designed for carrying freight or merchandise or, (ii) any motor vehicle operated for the carriage of passengers for hire or compensation, having in either instance been granted a certificate of public convenience or a permit by the Pennsylvania Public Utility Commission or been issued

[ 281 Pa. Super. Page 455]

    a certificate of public convenience and necessity or a permit by the Interstate Commerce Commission, and

(2) An owner or operator of any other motor vehicle designed for carrying freight or merchandise or operated for the carriage of passengers for hire whose employes are insured under the provisions of "The Pennsylvania Workmen's Compensation Act," act of June 2, 1915 (P.L. 736), as amended, shall have the right to reject such coverage in writing in which event, such coverage need not be provided in or supplemental to a renewal policy where such insured had rejected the coverage in connection with a policy previously issued to him by the same insurer.

1963, Aug. 14, P.L. 909, § 1 as amended 1968, Dec. 19, P.L. 1254, No. 397, § 1, effective Jan. 1, 1969, 40 P.S. § 2000 (footnotes omitted).

Mitchell brought the instant suit in Equity against his self-insured employer to recover the equivalent of uninsured motorist insurance coverage benefits.

In his complaint he alleged the above facts and in addition that appellee was not an owner or operator of motor vehicles designed for carrying freight, merchandise, or passengers for hire or compensation. Appellant's complaint stated that appellee carried an "excess liability" insurance policy with California Union Insurance Company which covered the truck involved in the accident and that this policy contained the following provision:

"[t]he insured [appellee, Philadelphia Electric Company] warrants that coverage under the uninsured motorist laws will be maintained during the policy period." Appellant asserted further that appellee, as a qualified self-insurer, must discharge all duties and responsibilities of an insurance carrier under the Uninsured Motorist Act, Act of August 14, 1963, P.L. 909, § 1, as amended, 40 P.S. § 2000, and that appellee ...


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