Appeal from the Order of the Court of Common Pleas of Delaware County, Civil at No. 87-16967
Jeffrey M. Azpell, Upper Darby, for appellant.
Paul R. Bartolacci, Media, for appellee.
Wieand, Montemuro and Hoffman, JJ.
[ 382 Pa. Super. Page 256]
This is an appeal from the June 15, 1988, order of the Court of Common Pleas of Delaware County, wherein the
[ 382 Pa. Super. Page 257]
court vacated an arbitration award which had granted the appellant, John Azpell, a recovery of $15,000.00 against the Old Republic Insurance Company, the appellee. The trial court then entered judgment in favor of the Old Republic Insurance Company. We affirm.
The facts underlying the present appeal are not in dispute. In October of 1986, the appellant was injured when he was involved in a car accident while operating a vehicle owned and insured by his employer, Darby Township. Appellant's vehicle was struck by an uninsured motorist. At the time of the accident, the appellant was acting within the course and scope of his employment as a Darby Township police officer. Appellant therefore received workmen's compensation benefits from Darby Township for his medical bills and lost wages. Appellant then filed a claim for uninsured motorist benefits with Old Republic.*fn1 Old Republic had issued a Business Auto Policy to the Township of Darby for the period of January 1, 1986 through January 1, 1987, which provided uninsured motorist protection. When Old Republic refused to provide appellant with uninsured motorist benefits, the matter proceeded to arbitration in accordance with the terms of the insurance policy.
We have reviewed the transcript from the arbitration hearing which was conducted on November 11, 1987. During this hearing, the appellant argued that his receipt of workmen's compensation benefits was not his exclusive remedy with regard to his employer and his employer's insurance carrier. Appellant relied upon Boris v. Liberty Mutual Insurance Company, 356 Pa. Super. 532, 515 A.2d 21 (1986), an en banc decision of this Court which does support this position. Counsel for Old Republic acknowledged the Boris precedent, but emphasized that the question of whether the Workmen's Compensation Act*fn2 precludes an employee from recovering uninsured motorist benefits from his employer for a work-related automobile
[ 382 Pa. Super. Page 258]
accident was then pending before the Pennsylvania Supreme Court. Counsel for Old Republic also pointed out that, prior to the Boris decision, panel decisions of the Superior Court had reached conflicting results on this issue.
Old Republic's petition to vacate the arbitration award included the following as grounds upon which the trial ...