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filed: October 25, 1985.


Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3597 March Term 1984.


Paul M. Perlstein, Philadelphia, for appellant.

Martin Horowitz, Philadelphia, for appellee.

Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ. Spaeth, President Judge, files a dissenting opinion.

Author: Shoyer

[ 347 Pa. Super. Page 33]

This case is an appeal from an Order of the lower court denying Petitioner's motion to compel arbitration by his employer.

The appellant, while in the course of his employment, was injured in an automobile accident caused by an uninsured motorist. The appellant received workmen's compensation benefits from his employer and then demanded uninsured motorist benefits. The employer, appellee herein, denied these benefits. The appellant then filed a Petition to Compel Arbitration citing Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983). This petition was denied and this appeal followed.

The appellant claims that because of the holding in Modesta, that self-insureds are required to maintain uninsured motorist coverage under the Uninsured Motorist Act,*fn1 he is entitled to such benefits.

[ 347 Pa. Super. Page 34]

The appellee, in its brief, contends that the appellant's recovery is limited to the benefits received under the Workmen's Compensation Act.*fn2

The lower court, in its opinion, cited Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980), for the authority that workmen's compensation is the exclusive means of recovery for an employee injured in the scope of his employment. The lower court correctly stated that while Modesta holds that self-insurers must provide uninsured motorist coverage such insurance does not compel coverage to an employee covered by workmen's compensation, but is reserved for those not injured in the course of their employment.

We affirm.

In Turner v. SEPTA, 256 Pa. Super. 43, 389 A.2d 591 (1978) (a unanimous opinion by the full Court), an employee of SEPTA was injured in a collision between the bus he was driving and another vehicle. This Court, in denying the employee's claim for no-fault benefits, stated that an injured employee's sole remedy against his employer is the Workmen's Compensation Act. Section 303, 77 P.S. § 481(a) of the Workmen's Compensation Act states as follows:

"(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, 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 as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108." (Emphasis supplied)

This section of the Act, as amended, became effective on February 3, 1975. The Uninsured Motorist Act, as amended, became effective on January 1, 1969. We believe the language and reasoning in the Turner case can be applied to a claim by an employee for uninsured motorists benefits

[ 347 Pa. Super. Page 35]

    as well as No-fault benefits. In Footnote No. 2 in Turner, it is stated:

"2. Were we to decide that the Workmen's Compensation Act and the No-fault Act were in any manner irreconcilable, the iron-clad exclusivity provision contained in the 1974 amendment to Section 303 would control. 'Whenever the provisions of two or more statutes enacted finally during the same General Assembly are irreconcilable, the statute latest in date of final enactment irrespective of its effective date, shall prevail.' Statutory Construction Act, Act of May 28, 1937, P.L. 1019, art. IV, § 65, 46 P.S. § 565.

"We are of the opinion that if any exception had been created by the No-fault Act, the legislature would surely have seen fit to incorporate the exception when it amended Section 303 of the Workmen's Compensation Act. 'Any question as to the intention of the legislature that the remedy created by the Workmen's Compensation Act be exclusive is removed by [the 1974 amendment].' . . ."

The opinion of the majority in Wagner, supra, relied on Turner and upheld its reasoning despite a strong attack made by the minority. It should also be observed that the Modesta Court in Footnote No. 3 stated that the Uninsured Motorist Act and the No-Fault Act "both . . . relate to the same class of persons and deal with the same subject, they are in pari materia and must be construed together."

We believe that the legislature has clearly indicated its intentions to exclude employees injured in the scope of their employment from both No-fault and Uninsured Motorists' benefits, leaving their only remedy the benefits under the Workmen's Compensation Act.


SPAETH, President Judge, dissenting:

I should hold that the Workmen's Compensation Act does not bar appellee's liability to pay uninsured motorist benefits.

[ 347 Pa. Super. Page 36402]

A.2d 1058, 1060 (1979). Therefore, the responsibility of an employer to provide No-fault coverage was a responsibility to provide coverage for the employer's own liability. It was on this basis that the Court in Wagner held that the employer's liability under the No-fault Act as to an employee was barred by the Workmen's Compensation Act.

*fn* The Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

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