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.
[ 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 ...