*1 Appellant last contends that his counsel his ap peal from his first PCHA petition was ineffective because he awas member of the Philadelphia District Attorney’s office appellant’s at time petition PCHA was heard before the lower court. We cannot conclude that counsel was ground. ineffective on Appellant this has not shown any mannеr which he prejudiced was his counsel’s former employment. reasons,
For the foregoing affirm the order of the trial court.
Affirmed. Boris, H/W, Appellants,
Charles BORIS Deborah LIBERTY MUTUAL INSURANCE COMPANY Penna. (AMICUS CURIAE). Lawyers Trial Assoc.
Superior Pennsylvania. Court of
Argued May 1986. Sept. 18,
Filed 1986. *3 Schmidt, Mary Philadelphia, L. for appellants. L. Robinson, Lawrence Philadelphia, appellee. CIRILLO, Before Judge, CAVANAUGH, President and BROSKY, McEWEN, SOLE, BECK, DEL TAMILIA, JOHNSON, KELLY and JJ.
CIRILLO, President Judge: Is an compensation who collects workmen’s following benefits a work-related motоr vehicle accident precluded from obtaining uninsured motorist benefits under his fleet employer’s policy? (his
Appellant wife, Deborah, Charles Boris is co-appel- lant) driving was a for his truck employer, Buckley and when he off the an Company, was run road uninsured motorist. He suffered to injuries his knee and back. De- spite treatment, extensive medical he continues to suffer from of pain the those injuries. and
Buckley Company carries both workmen’s compensa- tion and uninsured motorist through appellee insurance Liberty Mutual Insurance the Company. poli- Under latter each cy, of 67 vehicles is insured to Buckley’s the extent of $30,000.00 against motorists; caused injuries by uninsured if dispute there is a the between insurer insured ovеr coverage liability, a standard arbitration clause in con- the tract dictates that the submitted to controversy be arbitra- tion. This clause invoked Mr. sought was when Boris benefits, clause, uninsured motorist to pursuant panel court, the third arbitrator on the appointed by was the agree since the could not on The parties subsequent one. $841,569.00 arbitration resultеd in award an to appellant. Mutual, Upon petition by Liberty the Alfred Honorable J. DiBona of Philadelphia Court of Common Pleas re- viewed the award panel egre- and concluded the made an gious error in awarding law uninsured of motorist benefits to Mr. Boris. Judge DiBona found compensa- workmen’s tion to be the sole remedy,1 and accordingly vacаted award. This is an appeal that order. support appellant’s Trial position, Pennsylvania Lawyers Associ- ation filed a separate has brief as amicus curiae.
Initially, we appellants’ consider contention that Lib erty Mutual waived its compensation defense workmen’s as remedy. view, sole im appellants’ Liberty Mutual properly hеaring waited until the arbitration to present defense; it should first have been raised under a “new hearing matter” petition seeking an answer to Mr. Boris’ appointment of an arbitrator.
It is true that 1030 all requires Pa.R.Civ.P. affirmative defenses be set in a responsive pleading. to forth We also agree one, that an Liberty Mutual’s defense is affirmative is not although appellants sug- it one of as “immunity”, Nonetheless, gest.2 not Liberty Mutual did waive its de- Boris, Appellant, already compensa- 1. Charles has received workmen’s tion. appears may appellants Liberty 2. It that have labelled Mutual’s de- "immunity" simply bring scope of fense as one to it within the of Rule unnecessary, is Ensign-Bick- 1030. This for as we held Sechler v.
536 fense because Rule 1030 cannot control here. Appellants impose seek to a duty to plead new matter in response to a petition appointment for of an arbitrator. The petition does not set forth any legal substantive arguments, and pursu- ant to Pa.R.Civ.P. 1007 is not a “pleading” which can properly commence a civil action. It would be anomalous to impose pleading burdens of a civil action on a party responding to a mere petition, especially since there is no to answer such duty a petition in the first instance. In reaching conclusion, this we observe that the policy itself states only the proceedings shall be conducted in accordance with the Arbitration Act of and makes no mention of the applicability of the procedure civil rules. Compare Cassidy Keystone Insurance Company, 322 Pa.Super. 469 (1983) (rules A.2d 236 procedure civil to applied process service of in arbitration setting because insurance policy expressly required compliance such with rule). service alternative, appellants argue that Mu Liberty
tual, its defense being one of “immunity”, should have simply objected to the petition for appointment of an arbi trator. words, other the defense was waived because Liberty Mutual submitted to the jurisdiction. court’s This meritless, contention is because the defense is not truly one of immunity, despite the fact that even Liberty Mutual itself refers to it as such in its brief. As Black’s Law Dictionary term, defines the is a immunity “freedom from or duty penalty” such governmental as tort immunity. Here, Liberty Mutual is not patently immune from the duty benefits; to pay to the it is contrary, only relieved of such if obligation its defense accepted Thus, as valid. a lack jurisdiction argument would be fruitless.3 Co., Pa.Super. (1983), applies Rule to ford defenses, just all explicitly affirmative those named in the rule. connection, 3. We note that the appellants two cases cited in this Co., Parsons v. State Farm Mutual Pa.Super. (1984), Co., A.2d 192 and Aster v. The Jack Aloff absolutely have proposition no relation to the they which are asserted.
537 In the final prong of their multi-faceted argu waiver ment, appellants maintain that by including an arbitration clause in thе insurance policy, Mutual Liberty tacitly admits that are entitled employees to uninsured motorist benefits. Again, disagree. position This overlooks the fact that at some point time one of vehicles Buckley’s might be operated aby non-employee who is ineligible for workmen’s compensation.
We turn now to the substantive issues before us. Liberty Mutual, in urging that workmen’s compensation the sole available, remedy relies on Wagner National primarily Indemnity Company, 154, 492 Pa. Septa, Turner v.
and 256 Pa.Super. (1978). These cases and others cited hold that insofar as workmen’s compensation was created to replace suits by employees damages caused by possibly negligent employers, such liti- gation will not be allowed when the has obtained workmen’s compensation. Further, as the Workmen’s Com- Act, pensation 77 Pa.S. specifically provides, the em- § insurer ployer’s enjoy shall the same freedom from suit as does the employer-insured. Additionally, Liberty Mutual asserts that the Workmen’s Compensation Act enacted was Act, after Uninsured Motorist yet Pa.S § nonetheless stated that workmen’s compensation was an remedy, making exclusive no possible mention of a Unin- sured Motorist Act recovery. We reject Liberty Mutual’s contentions, for they purpose misconstrue the scope the Workmen’s Compensation Act.
In the
proliferation
face of a
of suits initiated by injured
employees,
Compensation
the Workmen’s
Act was enacted
to
an
provide
efficient means of compensating aggrieved
workers
litigating
without
the issue of employer negligence.
under the Act is
Recovery
complete
a
replacement for suit
against
employer;
employee receives the statutory
recompense for his work-related injury,
may
not then
seek to litigate
generally
See
U.S. v.
damages.
those same
Demko,
(1966);
U.S.
S.Ct.
Act specifically provides the employer’s insurance *6 carrier shall the enjoy same freedom from suit as does the employer itself. 77 Pa.S. 501. This is entirely logical as § it relates to the carrier of benefits, no-fault insurance coverage such in ultimately litigation results of the employ- er’s negligence despite the fact that the employer was not sued thе directly by employee.
However, the employer’s freedom from suit under
the Workmen’s Compensation Act does not logically extend
to the carrier of uninsured motorist benefits. The injured
employee who seeks
coverage
such
asserts only that he was
injured at the hands of some third party who was not
adequately insured. The employer cannot
imрlicated
be
in
such wrongdoing in
slightest.
Indeed,
the
the law is clear
that when an
seeks to
employee
recover damages from
some third party, the employer may not
joined
be
as an
additional defendant or involuntary plaintiff. Heckendorn
v.
101,
Consolidated Rail
502
Corp.,
Pa.
Naturally, the Workmen’s Compensаtion Act makes no mention of recovery under the earlier-passed Uninsured Motorist Act. A claim submitted under the latter is wholly unrelated to the employer’s activities gives no cause for the employer to assert any turn, sort of “immunity”. there is no freedom from suit for the uninsured motorist carrier to in sum, “borrow” this context. the fact that an employee’s claim for uninsurеd motorist benefits only addresses wrongs the of a third party, and not the employ er, takes a claim for such benefits outside the scope of the “immunity” created by Workmen’s Compensation Act. Insofar as Turner and Wagner, supra, addressed work compensation men’s as it relates to (which a no-fault claim litigation can involve of employer negligenсe), appellee’s reliance on those cases is entirely misplaced.
539 decision, In reaching our keep mind that the Work- Compensation men’s Act as as exclusive Liberty Mutual would have us For example, believe. Act was injured never intended to strip right an to maintain an action against a third party tortfeasor. See Gillespie Veceniе, (1981). v. 292 A.2d Pa.Super. Indeed, an action lie against can if employer itself it harmed employee through its an wrongful intentional act. v. See Jones P.M.A. Pa.Super. Company, (1985); see generally Higgins Clearing Corp., (1985); Machine A.2d Annot., 96 (1980). A.L.R.3d 1064 These considerations bol- ster our conclusion that the of the “exclusivity” workmen’s *7 compensation cannot be read as remedy anything more than a that realization the cannot “have his cake and it, too”; eat he the more and expeditious obtains efficient statutory to the remedy against exclusion a suit his This does not employer. given up mean he has the to right seek redress an unrelated party. Consequently, third he must pursue be allowed to that same course of action agаinst the carrier of benefits; uninsured motorist despite fact the represent the that carrier does the not interests of motorist, the uninsured it does stand his shoes as con- cerns suits the injured party. See 7 Am.Jur.2d Auto seq. (1980); Insurance 293 et see also Rhodes v. Auto § Ignition (1971).4 A.2d Company, Pa.Super. reason, reject For this we Liberty argument Mutual’s that since Mr. Boris no had contractual rеlationship with insurer, he must for suing directly settle the motorist or nothing at all.
We also observe that the Uninsured Motorist Act is broad in its a intentions. It is reflection of the reality harsh that more more responsible and motorists are injured by careless drivers who take to the road wantonly obtaining without against insurance might the harm they Consequent- cause. Rhodes, injured party 4. obtained uninsured motorist benefits however, obtaining compensation; after workmen’s that case does issue, exclusivity remedy control the since the uninsured motorist employee’s policy. benefits were obtained under the own auto
ly, every effort
is to be made to allow
under
recovery
this
Act, so that
the injured
can be
party
“made whole” just as
if the wreckless motorist had himself obtained no-fault
benefits. See Tubner v. State Farm Mutual Auto Insur-
Co.,
ance
Johnson v.
496 Pa.
(1981);
basis for the provider of uninsured motorist cover- age independently However, liable. we wish to point out that we have taken a slightly different road in arriving at this result. Appellants seek to distinguish the no-fault insurer from the uninsured motorist insurer on the basis the motor vehicle owner must obtain no-fault insur- ance, whereas the insurer has an independent legal obli- *8 gation to provide uninsured motorist coverage. This argu- ment is flawed. While it is true that the Uninsured Motor- ist prohibits Act an insurer issuing from a policy that does not include uninsured motorist coverage, we see this obli- as gation secondary: it only arises the vehicle owner after fulfills the primary duty obtaining of no-fault benefits. At no time an will insurer have to provide uninsured motorist coverage separate from a policy, no-fault the which vehicle obligated owner is to obtain.
To conclude on this point, recognize two recent opinions panels of this are Court inconsistent with Lewis v. School District Philadel- In today’s holding. of phia, 347 Pa.Super. (1985), and Vann v. The School District Philadelphia, 348 Pa.Super. of (1985), A.2d 260 recipient the of workmen’s compensation benefits was denied rеcovery of uninsured motorist bene- fits. Lewis relied on Turner Wagner, supra, in pre- the cisely same manner as appellee in erroneously did the case before us. The important distinction between the nature of no-fault and uninsured motorist benefits was overlooked. Vann relied on Lewis squarely the opinion in denying the sought. benefits areWe aware that unlike the appellee here, in Lewis and Vann was a defendant This, however, self-insured entity. is not an important distinction, for the self-insured’s payment into a fund is little different from appellee’s payment of premiums for purposes our analysis. The self-insured entity pays the in plaintiff a way, different but nature of the benefits are the case, same. In each the precise issue is whether a workmen’s compensation recovery precludes the receipt of uninsured motorist benefits. Insofar as Lewis and Vann are at odds with our holding on today point, this they are overruled.
We now consider the second substantive issue: whether the panel arbitration acted properly cumulating “stacking” $31,000.00 or recoverable under each of Buckley’s $841,569.00 trucks to arrive at the award.. This issue was not passed upon Judge DiBona, insofar as he vacated the award solely based on the first issue. Royal Co., Miller v. 354 Pa.Super. a three judge panel of this Court recently
concluded that uninsured motorist benefits under a corpo- rate fleet policy may be stacked. holding, so panel оbserved that a contrary finding would make premi- um costs prohibitive and that stacking such is not within the expectations reasonable parties of any to the insurance agreement. We find this logic compelling embrace the Miller holding entirely.
Accordingly, the arbitration award is modified to the single $30,000.00 vehicle limit coverage dollars. note We
542
the arbitratiоn was conducted pursuant
to the 1927
Act,
Thus,
Arbitration
42
on appeal
Pa.C.S. 7301.5
we are
§
free to correct
error of
any
law made
the arbitrators in
7315;
their
42
reaching
decision.
Pa.C.S.
see Flamini v.
§
General Accident Fire and
Assurance
328
Corp.,
Life
406,
(1984).
A.2d
Pa.Super.
477
508
out that
Additionally,
point
even absent the Miller
decision, supra, appellants would not be entitled to stacked
employee,
benefits. As an
appellant Mr. Boris was not an
i.e.,
of the
beneficiary
policy,
insurance
he was not
intended
insured,
a “class one”
since that class is limited to “You or
any family
view,
In our
member”.
“You” refers to the
or
person
entity to whom the policy was issued. We would
deny multiple coverage
therefore
for the reasоns set forth
in
Contrisciane,
Utica Mutual Insurance Co. v.
504 Pa.
328,
Flamini,
The vacating order the arbitration award is reversed and the award reinstated. The single award is modified to the $30,000.00. coverage vehicle limit of McEWEN, J., files a concurring opinion.
McEWEN, Judge, concurring: The ruling that uninsured motorist benefits under a cor- porate fleet policy may not be stacked is so sound as to be beyond dispute and I hasten to join both the rationale and upon conclusion that issue.
I am persuaded now also that an employee who receives Compensation precluded Workmen’s benefits is not receiving uninsured motorist benefits under his employer’s a decision policy, which overrules Lewis v. School District (1985) 347 Philadelphia, Pa.Suрer. Vann v. The Philadelphia, School District 348 Pa.Su- (1985). 502 per. But angels while would fear repealed by 5. The Act was the JARA Continuation Act of 5, 1980, Thus, 501(c). any Act of October P.L. No. 142 § refer- necessarily incorporates provisions ence to the Act of the Co., Act. See Patrick Cherokee (1986). 512 A.2d *10 to express a rationale which varies from one in which all of the other of members this Court en banc joined, have I rely would for that conclusion upon reasoning set forth in the tersely cogent dissent of our esteemed former Presi- dent Judge Edmund B. in Spaeth, Jr. Lewis v. School District Philadelphia, supra, at 143, which, essence, at states:
The exclusivity provision of the Workmen’s Compensation Act is restricted to the “liability of an employer”.
When a carrier provides uninsured motorist coverage to an employer, it is providing coverage not for the liability of the employer but for liability of someone else who should have had but did not have his own coverage. Thus, uninsured coverage motorist is not coverage “liability of an employer”.
Therefore, an precluded from receiving uninsured motorist benefits under the employer’s policy. That reasoning and, is as as it is compelling succinct thus it is, I join in this conclusion majority.
515A.2d 27 Pennsylvania COMMONWEALTH of RODRIQUEZ, Appellant. Juan T.
Superior Pennsylvania. Court of
Argued April 1986. Sept.
Filed 1986.