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GEORGE C. KUNEY v. PMA INSURANCE COMPANY (11/28/88)

filed: November 28, 1988.

GEORGE C. KUNEY, APPELLANT,
v.
PMA INSURANCE COMPANY



Appeal from the order of the Court of Common Pleas, Civil Division, Philadelphia County, March Term 1987, No. 3794.

COUNSEL

William David Marvin, Philadelphia, for appellant.

Anthony J. Bilotti, Philadelphia, for appellee.

Brosky, Rowley and McEwen, JJ.

Author: Rowley

[ 379 Pa. Super. Page 599]

This is an appeal from an order of the trial court sustaining PMA Insurance Company's (appellee's) preliminary objections and dismissing appellant's complaint. Although presented in his brief as two separate questions, appellant, George Kuney, raises only one issue in this appeal; i.e., whether an employee has an independent cause of action against his employer's workmen's compensation insurer if the insurer has engaged in conduct designed to frustrate the employee's right to compensation under the Pennsylvania Workmen's Compensation Act, 77 Pa.S.A. ยงยง 1 et seq. We hold that he does and reverse.

Appellant was injured on February 4, 1985, while working as an employee of Continental Data Systems (Continental). Appellee is Continental's workmen's compensation insurance carrier. Appellant filed a claim petition with the

[ 379 Pa. Super. Page 600]

Pennsylvania Bureau of Workmen's Compensation. The claim was litigated before a referee who filed a decision on February 10, 1987. It was determined by the referee that appellant was entitled to total disability benefits commencing April 12, 1985, interest on compensation past due, costs, and attorney's fees. Appellee filed an appeal of the referee's award to the Pennsylvania Workmen's Compensation Appeal Board, as well as a request for a supersedeas. On April 14, 1987, appellant filed this civil action against appellee alleging that appellee had acted in bad faith in refusing to pay appellant any compensation or medical benefits. Appellant further alleged that appellee had engaged in conduct designed to delay and frustrate appellant's assertion of his rights. Appellee filed preliminary objections to the complaint. The trial court held that appellant's claim fell within the jurisdiction of the Workmen's Compensation Act and that the Act is appellant's exclusive remedy. The court sustained Appellee's preliminary objections and dismissed Appellant's complaint. Appellant filed this timely appeal from that order.

Appellant argues that this action is not barred by the Workmen's Compensation Act because it is directed at the employer's insurance carrier, and not the employer, for injuries caused by the carrier, separate and apart from those which were incurred at his workplace. Appellee responds that the Act is appellant's exclusive remedy and precludes any action against it, relying upon Rosipal v. Montgomery Ward, 360 Pa. Super. 570, 521 A.2d 49 (1987), alloc. granted, 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed, 517 Pa. 460, 538 A.2d 495 (1988). Appellee's reliance is misplaced, however. Rosipal involved an employee who commenced a civil action against her employer after the employer filed an allegedly fraudulent petition for termination of Workmen's Compensation benefits. We held that the Workmen's Compensation Act covered all injuries to an employee caused by the employer and that the exclusivity clause bars all civil actions flowing from work related injuries. The instant case, as alleged by appellant, involves

[ 379 Pa. Super. Page 601]

    no claim against the employer, but rather, only against the employer's insurance carrier.

We find that the instant case is analogous to Reed v. Hartford Accident and Indemnity Company, 367 F.Supp. 134 (E.D.Pa.1973). There, the employee filed an action against his employer's insurance carrier for its own independent tortious conduct. The complaint contained four counts: economic distress, conversion, abuse and ...


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