No. 598 Pittsburgh, 1981, Appeal from the Order dated April 29, 1981, Court of Common Pleas, Allegheny County, at No. 9890 of 1980, Civil Division.
Bernard W. O'Keefe, Pittsburgh, for appellant.
E. J. Strassburger, Pittsburgh, for appellee.
Spaeth, Hester and Johnson, JJ.
[ 303 Pa. Super. Page 121]
This is an appeal by an insurance company from an order granting summary judgment for an insured and against the insurance company. The order awards wage loss benefits to the insured over and above the benefits he received from his
[ 303 Pa. Super. Page 122]
employer under the Workmen's Compensation Act*fn1 so as to make up the difference between actual wage loss and the benefits received. The order also awards counsel fees and costs to the insured, as well as interest on the benefits awarded at the rate of 18%, pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn2 We affirm.
The insured, the appellee in this case, an employee of the City of Pittsburgh, was a passenger in a City of Pittsburgh truck which was involved in a motor vehicle collision. At the time of the accident the insured was acting within the scope of his employment. He incurred personal injuries in the collision and has since then been unable to return to his job with the City. The insured also had part-time evening work as a janitor for another employer, and has not been able to resume that work either. His weekly wages from the two jobs were $282.96, of which $245.76 was the City wages and $37.20 was the janitor's wages. Since the accident the insured has received $163.84 per week in Workmen's Compensation benefits from the City. He accordingly submitted a claim to appellant, the insurance company with whom he had no-fault insurance coverage for his personal automobile, for wage loss benefits over the amount paid under Workmen's Compensation. The insurance company denied the claim on the grounds that the insured should recover exclusively from his employer's insurance carrier. The insured thereupon filed suit in assumpsit against the insurance company, his own insurer. The complaint included a request for attorney's fees and costs, and for interest on the payments at the 18% rate. The plaintiff subsequently
[ 303 Pa. Super. Page 123]
filed a motion for summary judgment which was granted by Judge WETTICK.
In its appeal the insurance company raises three questions: (1) whether an employee injured in the course of his employment while occupying his employer's vehicle, who receives Workmen's Compensation benefits, is entitled to recover the excess wage loss benefits from his own no-fault insurance carrier; (2) how the wage loss benefits should be computed; (3) whether the plaintiff is entitled to attorney's fees.
As to the first issue, the insurance company argues that the insured should recover only from his employer's no-fault insurance carrier. This argument is presented to us despite the holding in Wagner v. National Indemnity Company, 492 Pa. 154, 422 A.2d 1061 (1980), which held specifically that an employee injured in the scope of his employment while driving his employer's vehicle may not recover excess benefits, i.e., benefits over and above his Workmen's Compensation benefits, from his employer's no-fault carrier. In Wagner the Supreme Court said:
[W]here an employee is injured in an accident and is covered by workmen's compensation, this by no means precludes recovery under no-fault; Section 303 of the Workmen's Compensation Act precludes recovery from the employer only. Thus, while no recovery is allowed under Section 204(a)(1) against the employer's no-fault carrier because of the exclusivity section of workmen's compensation, an insured employee could recover under Section 204(a)(2)-(5) if applicable. From this recovery, the workmen's compensation benefits would be deducted as called for in Section 206 of the No-Fault Act.
In sum, an employee injured in the scope of his employment while driving his employer's vehicle may recover only workmen's compensation benefits from his employer or the employer's workmen's compensation carrier; such a
[ 303 Pa. Super. Page 124]
result is compelled by Section 303 of the Workmen's Compensation Act. The injured employee may, if applicable, proceed against any of the applicable security mentioned in Section 204(a)(2)-(5). Should the employee recover no-fault benefits, workmen's compensation benefits must first be deducted from any no-fault benefits to be paid.
492 Pa. at 165, 168, 422 A.2d at 1067-1068. See Augostine v. Pennsylvania National Mutual Casualty Insurance Co., 293 Pa. Super. 50, 437 A.2d 985 (1981) (employee, injured while alighting from employer's truck, who received Workmen's Compensation total disability benefits, may proceed against his own no-fault insurer for basic loss benefits); Adams v. Nationwide Insurance Co., 285 Pa. Super. 79, 426 A.2d 1150 (1981) (employee injured while driving his own automobile within the scope of his employment is entitled to receive work-loss benefits from his own no-fault insurance carrier to make up the difference between his actual wage loss and the Workmen's Compensation benefits received). See also, Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa. Super. ...