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filed: September 10, 1982.


No. 308 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County at No. 632 March Term 1978.


James L. Womer, Philadelphia, for appellant.

George D. Sheehan, Jr., Philadelphia, for Prudential, appellee.

Steven B. Berger, Philadelphia, for City of Philadelphia, appellee.

Wickersham, Brosky and Wieand, JJ.

Author: Wickersham

[ 304 Pa. Super. Page 138]

On March 8, 1978, Edward Boothman filed a complaint in assumpsit against Prudential Property and Casualty Insurance Company (hereinafter Prudential) alleging, inter alia, that plaintiff Boothman had been involved in a motor vehicle accident with another vehicle in January of 1977, as a result of which he sustained personal injuries. Further it was alleged that plaintiff Boothman had requested the

[ 304 Pa. Super. Page 139]

    defendant, who insured Boothman under a policy of insurance, to make payment of medical bills and lost wages incurred as a result of the accident pursuant to the provisions of the Pennsylvania No-Fault Act.*fn1

Thereafter, on March 30, 1978, Prudential filed an answer to the complaint and filed a complaint against the City of Philadelphia, as an additional defendant, setting forth that at the time of the accident occurring January 26, 1977, plaintiff Edward Boothman was a policeman employed by the City of Philadelphia and was on duty at the time of said accident and alleging further that the security for the payment of basic loss benefits covering the motor vehicle furnished to the plaintiff by the City of Philadelphia was such security as was provided by the City of Philadelphia. Extended pre-trial discovery followed.

On January 24, 1980, the Honorable Edward Rosenwald, Senior Judge, granted a motion of Prudential for summary judgment and dismissed plaintiff's cause of action against it.*fn2 This appeal by Edward Boothman followed.*fn3 We reverse and remand.

In Petraglia v. American Motorists Insurance Company, 284 Pa. Super. 1, 3, 424 A.2d 1360, 1361 (1981), aff'd per curiam, 498 Pa. 32, 444 A.2d 653 (1982), we stated that:

Summary judgment 'shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the

[ 304 Pa. Super. Page 140]

    moving party is entitled to judgment as a matter of law.' Pa.R.Civ.P. 1035(b). Summary judgment can only be granted in the clearest of cases. See, e.g., Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). Additionally, the evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979); Just v. Sons of Italy Hall, 240 Pa. Super. 416, 368 A.2d 308 (1976).

Brunelli v. Farelly Brothers, 266 Pa. Super. 23, 402 A.2d 1058 (1979), involved a similar issue:

On August 6, 1975, Frederick A. Brunelli, an employee of Cobb and Lawless, was injured in a collision with an automobile driven by Luis Aviles, an employee of Farelly Brothers. At the time of the accident, Mr. Brunelli was operating a motor vehicle furnished by his employer, within the scope of his employment . . . .

Under No-fault § 111(b), the no-fault insurer (or 'obligor', to use the term employed in the Act) must pay the injured insured (the employee Brunelli in this case) 'basic loss benefits', regardless of who was responsible for causing the accident . . . . the workmen's compensation insurer must pay all that it is required to pay under the provisions of the workmen's compensation statute before the no-fault insurer's financial obligations begin to accrue.

Id., 266 Pa. Superior Ct. at 24-27, 402 A.2d at 1059-60.

The facts of record in this case clearly disclose that Boothman was injured in his employer's vehicle, while acting in the course and scope of his employment. In Augostine v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa. Super. 50, 437 A.2d 985 (1981), plaintiff Robert J. Augostine was employed by Penn Road Materials Company and was injured while alighting from one of his employer's trucks in the course of his employment. He applied for and was receiving total disability benefits under the Pennsylvania Workmen's Compensation Act. At the time of the accident the plaintiff owned his own car and was insured

[ 304 Pa. Super. Page 141]

    under a no-fault policy issued by Pennsylvania National Mutual Casualty Insurance Company. He then initiated an action in assumpsit whereupon 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. We said:

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.

The court found that neither of these sections created an exception to the exclusivity of remedy section of the Workmen's Compensation Act and held that the appellant could not recover from the employer's no-fault insurance carrier. The court specified, however, that an employee would be limited to workmen's compensation benefits only in a situation identical to the one before it; i.e., where the driver carries no insurance of his own on his own vehicle and no other vehicle is involved in the injury-producing accident. Wagner, supra 492 Pa. at 167, 422 A.2d at 1068 (Emphasis added).

The court stated:

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 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. Should an employee be using his

[ 304 Pa. Super. Page 142]

    employer's vehicle for private non-work related reasons, the employee could recover from his employer's no-fault carrier.

Wagner, supra, 492 Pa. at 167, 422 A.2d at 1068.

Applying the principles of Wagner to the facts of the instant case it is clear that although the plaintiff may not recover from his employer's no-fault insurance carrier, he may proceed against his own insurer under § 204(a)(2). It is also clear that § 206 of the No-Fault Act mandates that workmen's compensation benefits must be deducted from this recovery.

Id., 293 Pa. Superior Ct. at 52-55, 437 A.2d at 986-87 (footnotes omitted).

Under the authority of Augostine and Wagner, Edward Boothman clearly has a right of recovery against his personal no-fault insurer subject to an appropriate deduction for any workmen's compensation benefits received. Accordingly, the entry of summary judgment in favor of Prudential was erroneous and we reverse and remand for proceedings consistent with this opinion.

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