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ROBERT J. AUGOSTINE v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY (11/30/81)

filed: November 30, 1981.

ROBERT J. AUGOSTINE, APPELLANT,
v.
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, A CORPORATION



No. 97 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 79-21607.

COUNSEL

Ernest B. Orsatti, Pittsburgh, for appellant.

John C. Carlin, Jr., Pittsburgh, for appellee.

Price, Cavanaugh and Hoffman, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Cavanaugh

[ 293 Pa. Super. Page 51]

This is an appeal from the lower court's order granting judgment on the pleadings in favor of the defendant, Pennsylvania National Mutual Casualty Insurance Company (hereinafter Penn National) and against the plaintiff, who is the defendant's insured.

The following facts are not disputed. The plaintiff who was employed by Penn Road Materials Company was injured while alighting from one of his employer's trucks in the course of his employment. He applied for and is currently receiving total disability benefits under the Pennsylvania Workmen's Compensation Act.*fn1 At the time of the accident the plaintiff owned his own car and was insured under a no-fault policy issued by Penn National. He initially gave notice to his employer and his employer's no-fault insurance carrier and requested basic loss benefits. This request was denied. He then initiated an action in assumpsit against his insurer. Penn National filed an answer and new matter to which the plaintiff filed preliminary objections. With the consent of both parties the court issued an order overruling the plaintiff's preliminary objections without prejudice to either party to file a motion for judgment on the pleadings. Both parties filed such motions. After argument the lower

[ 293 Pa. Super. Page 52]

    court issued an order granting the defendant's motion and denying the plaintiff's motion. Relying on Gradler v. Prudential Insurance Company v. Traveler's Insurance Company, 464 F.Supp. 575 (W.D.Pa. 1979)*fn2 and ยง 204(a) of the No-Fault Act*fn3 the lower court held that the plaintiff could not recover from his own no-fault carrier because the employer's no-fault insurance carrier was the proper company against whom he should proceed.

The Supreme Court's recent decision in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980) clearly indicates that although the plaintiff cannot recover from his employer's no-fault insurance carrier he is entitled to receive basic work-loss benefits to make up the difference between his actual wage loss and benefits conferred on him under the Workmen's Compensation Act from his own no-fault insurance carrier.*fn4

In Wagner, supra, the estate of a decedent, who was killed during the course of his employment while operating a company tractor-trailer, filed a claim against the employer's no-fault carrier.*fn5 The employer's carrier filed preliminary

[ 293 Pa. Super. Page 53]

    objections and the trial court dismissed the claim based on Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa. Super. 43, 389 A.2d 591 (1978).*fn6 This ...


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