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October 15, 1980

Ervin W. CAREY, Sr.

The opinion of the court was delivered by: WEBER

This diversity case, which is now before the Court on cross-motions for summary judgment, presents a number of interesting and novel questions regarding the relationship between Pennsylvania's Workmen's Compensation Act of June 2, 1915, P.L. 736 as amended December 5, 1974, P.L. 782, 77 P.S. § 411 et seq., and its No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.101 et seq.

There is little dispute regarding the relevant facts in this case. The plaintiff, Ervin S. Carey, Sr., was an employee of the General Electric Corporation. On the evening of April 18, 1978 the plaintiff was making deliveries for his employer in a truck owned by it. In the course of making these deliveries the plaintiff was severely injured when the truck he was operating was struck by a CONRAIL train while proceeding across a railroad crossing.

 Mr. Carey subsequently filed for workmen's compensation benefits. His request was denied, however, by Electric Mutual Liability Insurance Company, the workmen's compensation carrier for General Electric. In denying this claim Electric Mutual argued that the plaintiff was not entitled to workmen's compensation benefits because, at the time of the accident, he was violating both company rules and state law and was outside the course of his employment.

 Failing any resolution of this matter, the parties submitted the workmen's compensation claim to arbitration. In a decision issued on January 30, 1980 the arbitration referee found that, at the time of the accident, the railroad warning lights were operating and the crossing gates had descended. The referee further found that the plaintiff had proceeded onto the railroad crossing despite these warnings. Finally, the referee found that the plaintiff had a high blood alcohol level in his system at the time of the accident. On the basis of these findings the referee concluded that the plaintiff's injuries "were the direct result of his violation of law."

 This referee's decision was subsequently appealed to the Workmen's Compensation Appeal Board. The Board remanded the decision back to the referee for further findings and clarification. At present no further action has been taken by the referee.

 On April 18, 1980, the plaintiff commenced this action in Federal Court against Electric Mutual and Celina Mutual Insurance Company. In this action the plaintiff seeks No-Fault insurance benefits from both Electric Mutual, the insurer of his employer's truck, and Celina, his personal No-Fault insurance carrier. Both the plaintiff and defendant Electric Mutual have filed motions for summary judgment.

 According to Rule 56(c) of the Federal Rules of Civil Procedure a summary judgment is appropriate when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." As previously noted, there is little dispute in this case regarding the relevant facts. Therefore, the question for our consideration is whether on the facts as stated the plaintiff is entitled as a matter of law to a judgment against either Electric Mutual or Celina. Let us begin by considering the liability of Electric Mutual.

 At the outset there is one significant hurdle which the plaintiff must meet in order to establish No-Fault Liability against Electric Mutual. That hurdle is amended Section 303 of the Pennsylvania Workmen's Compensation Act, which states that:

The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes (sic), his legal representative, husband or wife, parents, dependents, next-of-kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death (covered by this act.) 77 P.S. § 481(a).

 By its express terms, this provision makes workmen's compensation the employee's exclusive remedy with respect to his employer. Moreover, subsequent cases interpreting this section have held that it bars an employee from seeking No-Fault benefits from the employer, Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa.Super. 43, 389 A.2d 591 (1978), or the employer's insurance carrier, Wagner v. National Indemnity Co., 266 Pa.Super. 110, 403 A.2d 118, (1979), as a result of injuries sustained in a work-related accident. Therefore, in this case, if plaintiff's injury is properly the subject of a workmen's compensation claim, then the Workmen's Compensation Act bars him from seeking any other relief through his employer, including No-Fault insurance benefits.

 The plaintiff seeks to escape the effect of this provision in a number of ways. First he argues that Electric Mutual is precluded from raising this defense because at the arbitration hearing on the workmen's compensation claim it had contended that the plaintiff was not in the course of his employment at the time of the accident. Under the plaintiff's theory, since the defendant prevailed at this hearing it is now estopped from asserting that Mr. Carey was in the course of his employment when the accident occurred. Furthermore, if Mr. Carey was not within the course of his employment, then the plaintiff argues that the accident falls outside the scope of the Workmen's Compensation Act. Therefore, Section 303 of that Act, as interpreted in Turner, would not bar payment by the employer's insurance carrier of No-Fault benefits. See, Gradler v. Prudential Property and Casualty Insurance Co., 464 F. Supp. 575, (W.D.Pa.1979).

 There is, however, one problem with the plaintiff's position. It assumes that the arbitration referee found for Electric Mutual because he concluded that Mr. Carey was not within the course of his employment. Underlying this assumption is the premise that, in determining eligibility for workmen's compensation, a violation of the law is functionally the equivalent of not being within the course of employment. Yet the record of the arbitration hearing makes clear the fact that Electric Mutual raised these two issues as separate and distinct defenses. Moreover, the referee's decision itself only refers to Mr. Carey's "violation of the law" as the grounds for denying his claim. It seems therefore that there is some confusion regarding the relationship between these two defenses under the Pennsylvania Workmen's Compensation Act.

 In this case the distinction between the defense of violation of law and that of course of employment is important for two reasons. First, that distinction may affect the applicability of the doctrine of estoppel to this case. Generally, under Pennsylvania law in order for a party to be estopped from advancing a position that party must have previously gained some advantage from asserting that position. See e.g., Scarano v. Central Railroad Company of New Jersey, 203 F.2d 510 (3d Cir. 1953); Welser v. Ealer, 317 Pa. 182, 176 A. 429 (1935). See also, 14 P.L.E. Estoppel, § 41, at 216 (1959). However, typically a party is not held to have gained advantage from a position unless that position is actually considered and adopted in a judicial proceeding. See, 28 Am.Jur.2d Estoppel and Waiver, § 70 at 698, (1966); 1B Moore's Federal Practice, P 0.443(4) (1974).

 The Superior Court disagreed, however, holding instead that:

All that is present here is an unadjudicated inconsistent position taken by defendants in a prior proceeding voluntarily withdrawn by plaintiff. Defendants cannot thus be estopped from asserting a position contrary to the one they never had an opportunity to prove or have adjudicated. At most, the ...

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