No. 31 W.D. Appeal Docket, 1983, On Appeal From The Order Of The Superior Court of Pennsylvania, Dated August 6, 1982 at No. 598 Pittsburgh, 1981, affirming the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. 9890 of 1980, Pa. Super. ,
Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case. Roberts, C.j., filed an Opinion in Support of Reversal of the Award of Attorney Fees in which McDermott and Hutchinson, JJ., joined.
On February 19, 1980, appellee, Kenneth Motley, while riding as a passenger in a City of Pittsburgh truck, was injured when the truck was involved in a motor vehicle accident. At the time of the mishap, the appellee was engaged in his duties, within the scope of his employment, as an employee of the City of Pittsburgh. Because of the injuries he suffered in the accident, appellee was unable to continue performing his city employment duties. In addition, at the time of the accident, appellee had part-time employment with Central Maintenance and Central Service, Inc. The injuries also prevented him from performing his part-time job duties.
When he was injured, appellee's combined weekly income was $282.96. He earned $245.76 a week with the city and $37.20 a week in his employment with Central Maintenance. Following the accident, appellee received $163.84 a week in Workmen's Compensation benefits from the City.
On the date of the truck accident, appellee had a no-fault insurance policy on his personal vehicle issued by the appellant, State Farm Mutual Insurance Company. Appellee submitted a claim to State Farm for payment of wage loss benefits to reimburse him for his wage loss over and above the amount he received from Workmen's Compensation. Appellant denied the claim contending that any wage loss benefits due appellee must be paid by his employer's insurance carrier. Appellee filed suit in assumpsit against appellant, State Farm, to recover the wage loss benefits he had applied for and had been denied. Motley's complaint also sought interest*fn1 and attorney's fees and costs.*fn2 Subsequently, appellee filed a motion for summary judgment which was granted. The lower court ruled that appellant was liable to appellee for the excess wage loss benefits sought. Appellant was ordered further to pay statutory interest on the benefits due and attorney's fees. On appeal, the Superior Court, 303 Pa. Super. 120, 449 A.2d 607 (1982), affirmed and ordered interest on the payments to be paid at the rate of eighteen (18%) percent, and remanded the case to the lower court for a determination of reasonable counsel fees. We granted appellant's petition for allowance of appeal.
The principal issue raised in this appeal is whether in the payment of work loss benefits to appellee, the appellant no-fault insurance carrier is liable for the difference between Workmen's Compensation benefits received and appellee's actual wages, or, the difference between Workmen's Compensation benefits and the maximum work loss benefits provided by the No-fault Act.
Section 1009.202(b) of the No-fault Act*fn3 limits work loss benefits as follows:
(1) up to a monthly maximum of:
(A) one thousand dollars ($1,000) multiplied by a fraction whose numerator is the average per capita income in this Commonwealth and whose denominator is the average per capita income in the United States, according to the latest available United States Department of Commerce figures; or
(B) the disclosed amount, in the case of a named insured who, prior to the accident resulting in injury, voluntarily discloses his actual monthly earnings to his obligor and agrees in writing with ...