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filed: November 8, 1985.


Appeal from the Order of September 28, 1983, in the Court of Common Pleas of Delaware County, Civil Division, at No. 81-10430.


William D. March, Media, for appellant.

E. Lawrence Hannaway, Philadelphia, for Wozniak, appellees.

Owen W. Nash, Assistant Public Defender, Media, for Allstate, appellee.

Beck, Popovich and Trommer,*fn* JJ. Popovich, J., files a concurring statement.

Author: Beck

[ 347 Pa. Super. Page 359]

In this appeal we are confronted with an issue of first impression concerning the interaction of Section 305 of The Pennsylvania Workmen's Compensation Act (Workmen's Act)*fn1 and Section 204 of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act)*fn2 where an employee has been injured in the scope of his employment by a vehicular accident and the employer has not provided workers' compensation coverage. Under these circumstances is the injured worker's or the employer's no-fault carrier primarily liable for coverage?

Employer-appellee John Wozniak failed to carry workers' compensation insurance. His employee, appellee Michael Wozniak, sustained injuries as the driver of a truck owned by his employer John. The truck was insured by John's no-fault carrier, appellant Harleysville Insurance Company. Michael brought an action for No-fault Act benefits against appellant Harleysville and against his personal no-fault carrier, appellee Allstate Insurance Company.

Harleysville moved for summary judgment on the ground that, pursuant to the Workmen's Act, Michael's exclusive remedy for an injury during the course of his employment was against his employer John and his employer's Workmen's Act insurer, if any. The trial court denied Harleysville's motion, and in accordance with Section 702(b) of the Judicial Code, 42 Pa.C.S. § 702(b), certified its interlocutory denial for immediate appellate review.*fn3

It is well established that where an employee is injured in a motor vehicle accident while operating his

[ 347 Pa. Super. Page 360]

    employer's vehicle during the course of his employment, the employee's recovery is limited to workers' compensation and an action against his personal no-fault insurer or the Pennsylvania Assigned Claims Plan for any loss in excess of the coverage provided by the Workmen's Act. Wagner v. National Indemnity Co., 492 Pa. 154, 422 A.2d 1061 (1980); Mumma v. Pennsylvania Assigned Claims Plan, 331 Pa. Super. 205, 480 A.2d 316 (1984); Ellisor v. Allstate Insurance Co., 325 Pa. Super. 318, 472 A.2d 1138 (1984); Motley v. State Farm Mutual Automobile Insurance Co., 303 Pa. Super 120, 449 A.2d 607 (1982); Turner v. Southeastern Pennsylvania Transportation Authority, 256 Pa. Super. 43, 389 A.2d 591 (1978).

Thus, when an employee has received workers' compensation, the Workmen's Act has been construed to preclude a suit against the employer's no-fault insurer on the ground that the employer's liability is limited to the provision of workers' compensation. Motley.

Should the same rule appertain where the employer fails to carry workers' compensation insurance? Should the employer's failure to obtain coverage under the Workmen's Act shift the entire burden of compensation to the employee's carrier and thus insulate the employer's no-fault insurer from liability where the employee's vehicular injury occurred in the scope of his employment? Citing Section 303 of the Workmen's Act, as amended, 77 P.S. § 481, appellant Harleysville contends that the Workmen's Act is the employee's sole remedy against the employer, and concomitantly, any insurer of the employer, for an injury incurred during the course of employment.

To support its contention, Harleysville interprets Section 305 of the Workmen's Act, as amended, 77 P.S. § 501, as affording an employee relief exclusively within the terms of the Workmen's Act whether or not the employer obtains workers' coverage for an employee. We agree that the employee must look to Section 305 for his remedy. However,

[ 347 Pa. Super. Page 361]

    we disagree with appellant's interpretation of the statute and find that the statute clearly makes the employer's carrier primarily liable.

In pertinent part, Section 305 states that "[w]hen any employer fails to secure the payment of [workers'] compensation . . ., the injured employee . . . may proceed either under . . . [the Workmen's Act] or in a suit for damages [against the employer] at law as provided by . . . [Sections 201, 202, 203 and 204 of the Workmen's Act, as amended, 77 P.S. §§ 41, 51, 52 & 71, and Section 205 of the Workmen's Act, as added by the Act of August 24, 1963, P.L. 1175, 77 P.S. § 72]."*fn4 (Emphasis added.) The statute is framed in the disjunctive. Where an employer has not supplied workers' compensation, the clear language in Section 305 offers the employee an election either to proceed under the Act by accepting the compensation schedules of Article III of the Workmen's Act or, alternatively, to secure relief outside the Act by an action at law for damages against his employer. Nothing in Section 305 permits an interpretation restricting the liability of an employer and his insurers where the employer has not complied with the terms of the Act.*fn5

Consequently, where an employer does not supply workers' compensation, an injured employee may present a claim to the employer's no-fault insurer in accordance with

[ 347 Pa. Super. Page 362]

Subsection 204(a)(1) of the No-fault Act*fn6,*fn7 and bring an action at law against the employer.*fn8,*fn9 Our statutory interpretation establishes that in such a circumstance, the employee shall first look to the employer's no-fault carrier. Our statutory interpretation is supported by sound policy. An employer's no-fault carrier can inform itself as to whether the employer carries workers' compensation insurance and can contractually protect itself in dealings with an employer who does not provide workers' compensation.

Therefore, because Michael may have a valid claim against Harleysville as his employer's no-fault insurer, we affirm the trial court's denial of appellant's motion for summary judgment.



POPOVICH, Judge, concurring statement:

I concur in the result only. An employee's remedy for his employer's failure to secure workers' compensation insurance

[ 347 Pa. Super. Page 363]

    is to either accept the compensation schedule under the Workmen's Act or file suit at law.

By allowing the employee to collect no-fault benefits through the employer's automobile insurer and also sue the employer, I believe is to exceed the clear language of the Act in terms of the scope of his recovery.

*fn* Judge Evelyn Trommer, Senior Judge of the Court of Common Pleas of Philadelphia County, is sitting by designation.

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