*1 below, 9711(h)(3). we record reviewing After the 42 Pa.C.S. of product not the imposed the sentence conclude addition, factor. arbitrary prejudice or other passion, aggravating one finding of least supports evidence 9711(d). Moreover, in in 42 Pa.C.S. specified circumstance Zettlemoyer, v. 500 Pa. at accordance with Commonwealth com sentencing data have we reviewed Pennsylvania Courts Office piled by Administrative (AOPC) conclude that pertaining to similar cases and not is excessive imposed upon appellant sentence death in similar cases. imposed to the sentences disproportionate Frey, Commonwealth v. A.2d See denied, cert. 707-08, 83 L.Ed.2d 469 U.S. S.Ct. (1984). Accordingly, affirm the verdict and sentence Walker, Court imposed upon appellant, death Shawn County.11 of Philadelphia Common Pleas PAPADAKOS, J., did in the decision of this participate case. J.,
MONTEMURO, sitting by designation. A.2d 102 DUCJAI, Appellant Juleann Tarvin, Appellees. DENNIS and Peter Dawn Pennsylvania. Supreme Court Submitted Oct. 1994. 24, 1995.
Decided March transmit, as Prothonotary Supreme Court is directed judice, including complete possible, record of the case sub soon as trial, hearing, imposition of sentence and sentencing the record of Pennsylvania. to the Governor review this Court l(i). § 971 *2 O’Donnell, Ducjai. Peter Farrell, for Den- Alyce Hailstone J. Donohue Michael nis. Tarvin. Daley, for and Judith W. V. Cardoni
Harry ZAPPALA, CAPPY, FLAHERTY, NIX, C.J., and Before MONTEMURO, JJ. CASTILLE
OPINION MONTEMURO, Justice. passage of case is whether presented
The issue [“MVFRL”], Law Responsibility Financial Motor Vehicle legislative intent to expressed seq., 1701 et *3 injuries liability tort regarding employee’s alter law an the course during an accident co-employee a sustained may an specifically, More employment. of her scope and benefits from compensation recover both employee from her co- damages at common law her as aswell in an automobile injured under the when For employment? and of his during scope the course accident follow, the MVFRL passage hold that that reasons intent, and an legislative did such a express not co-employ common at law from her may not recover ee. Ducjai, passen- a 27, 1987, appellant, Juleann July
On Dawn operated appellee, owned and ger in an automobile in an automobile Ducjai Dennis were involved Dennis. and Tarvin,1 co-defendant, during Peter accident with Dennis’ accident, time injury. At the Ducjai sustained which Camp of the Y.M.C.A.’s employees Dennis were Ducjai and traveling camp from the Wilkes-Barre Kresge, were and Camp Kresge’s director. Y.M.C.A. at instruction did submit brief in matter. 1. Peter Tarvin (R.R. 139-142,155,177). Ducjai received workers’ compen- sation benefits as a result of the accident. 30, 1989, Ducjai
On June
timely filed a
Praecipe
Sum-
mons against Dennis and Tarvin. Ducjai filed her civil com-
17, 1989,
plaint
July
on
alleging
injuries
that she sustained
result
Dennis’ and Tarvin’s negligent operation of their
respective
Following
vehicles.
various responsive pleadings,
Dennis filed a Motion for Summary Judgment without opposi-
30, 1992,
tion on March
in which she claimed
immunity
negligence
Ducjai
because
was a co-worker who had-
been
the course
scope
and
of her employment.2
motion,
The trial court initially granted the
subsequently
but
vacated its order and permitted Ducjai
file
Brief
8, 1992,
Opposition.
May
On
the trial court
again
once
granted summary
Dennis,
judgment
in favor of
relying upon
co-employee
P.S.
immunity provision of the
(“Act”).3
Workers’ Compensation Act
Ducjai appealed
Court,
to the Superior
which initially re
versed the trial court’s entry of summary judgment
remanded the case to
County
Luzerne
for further proceed
Dennis,
ings. Ducjai v.
No. 02042 Philadelphia 1992 (Superi
(Cirillo
3, 1993)
Hoffman, JJ.;
Court Feb.
McEwen, J.,
however,
dissenting). Ducjai,
filed a Petition for Reargument
which
Superior
granted.
Court,
Court
The Superior
banc,
sitting en
affirmed the entry
summary
judgment by
Dennis,
the trial court after
reargument.
Ducjai
(1994)
(Cirillo, J.,
concurring).
Court,
appeal
On
to this
Ducjai argues that three sections of
brief, Ducjai complains
her
that no workers’
referee
work-related, and, hence,
finally adjudicated
injuries
ever
that her
were
*4
pursue damages through
she is still entitled to
negligence
a traditional
frivolous,
Appellant
Ducjai's
action.
argument
at 12.
and
Brief of
Stores,
McCrory
her reliance on Kohler v.
532 Pa.
107
1735,4
can be read
§§
and
under
received
compensation
recovery separate
to allow
upon
Ducjai relies
argument,
of her
support
the Act.
which conclud
courts of this Commonwealth
by
several cases
no bar to unin
were
compensation
ed that workers’
benefits
MVFRL. Selected Risks
benefits under the
sured motorists’
(1989);
130,
Dennis,
that MVFRL does not
on the other
asserts
481(a).5
Act. 77 Pa.S.
Dennis
generally
supersede
read,
pertinent part,
in
as follows:
statutory
4. The
sections
of
Section 1719. Coordination
Benefits
(a)
compensation,
policy
Except
of in-
General
for worker’s
Rule.—
pri-
subchapter
be
pursuant
this
shall
surance issued or delivered
arrangement
Any program,
or
for the
mary.
group contract
other
1712(1)
...
payment of
such as described in section 1711
benefits
(2)
provision that all
... or
...
be construed to contain a
shall
provided
duplication
of
therein shall be in excess
and not
benefits
provided
party
1712 or
any valid and collectible first
benefits
compensation.
1715 or workers’
Subrogation
Section 1720.
vehicle,
or
arising out
the maintenance
use of motor
In actions
subrogation
right
or reimbursement from a claim-
there shall be no
benefits,
respect
compensation
recovery
to workers’
ant’s tort
with
paid
or
or
benefits
1715]
benefits available under [section
arrangement
payable by program, group
or
whether
contract
other
or
primary or
under section 1719....
excess
compensation payments
(repealed
insofar
it relates to workers’
Act).
Compensation
benefits under the Workers’
other
compensation
Coverage
benefits
1735.
unaffected workers’
Section
subject
required by
subchapter
be
coverage
this
shall not made
compen-
any
because of
an exclusion or reduction
amount
injury.
payable
benefits
as the
same
sation
result
1993)
1993).
(providing
(repealed
(repealed
See also 75 Pa.C.S.
to uninsured and
benefits were
a bar
that workers'
benefits).
motorist
underinsured
against
remedy;
third
481.
actions
Section
Exclusiveness
party
indemnifying
party;
third
contract
(a)
Compensation]
[Workers’
of an
under
place
liability to such
be
and all other
Act shall
exclusive and
wife, parents, depen-
employees,
legal representatives, husband or
his
*5
relies on our
SEPTA,
decision in Hackenberg
358,
v.
526 Pa.
(1991),
Prior
passage
MVFRL,
to the
of the
we held that Section 72
of the Act “clearly provides that a co-employee is immune
from liability for his negligent act
in
resulting
injury to his
fellow employee.”
292, 278
Apple,
Pa. at
A.2d at 483. See
Sylvester,
(1981);
through Centennial System’s
carrier,
insurance
but also filed
an action in trespass
personal
injuries against
appellee.
The precise issue
in
raised
Apple was whether
the parties
were
the “same
as
employ”
72; however,
used
77 P.S.
n in the context
analysis,
of that
we addressed the immunity
provided by Section 72. We concluded
parties
were in the
“same employ,” Apple, 443
Pa. at
and the
appellee
protected
from the action in trespass by Section
72. Id. at
dents,
anyone
next of kin or
otherwise
entitled to
action
death____
at law or otherwise on
any injury
account of
has
this Court
of the MVFRL
passage
Since the
Act
exclusivity
both the
discuss
opportunity
had the
Paul Ins.
St.
injuries,
Alston v.
remedy
work-related
Co.,
(1992),
interplay
A.2d 421
as well as
*6
358,
Act,
Pa.
Hackenberg, 526
MVFRL and the
between the
Alston,
exclusivity
addressed the
A.2d 879. In
this Court
586
Alston,
261,
Id.
When we read with Alston and Hack and enberg note the absence of “manifest intention” legislature that the MVFRL prevail over Section 72 Act, Ducjai we readily precluded conclude that from recov ering damages alleged at common for the negligence law However, conclusion, Ducjai disputes Dennis. such a Risks, our marshals Selected decision 552 A.2d Chatham, along with Superior Court cases Pa.Super. 570 A.2d Ferry, A.2d in her defense. Risks, example,
For in Selected appellant company comprehensive insurance issued a insur- ance policy association, to a volunteer fire Thompson of which *7 firefighter. was a policy volunteer provided uninsured fire, motorist coverage. driving While to a was Thompson in involved an accident with an uninsured motorist. Thomp- son received to pursuant benefits his workers’ compensation and, thereafter, claim filed claim appellant with for unin- sured motorist issue benefits. The on to appeal this Court was whether appellant could reduce the amount of uninsured motorist benefits the amount of workers’ compensation received, benefits Thompson had upon based a contractual provision limiting liability.6 Id. at A.2d at 1387-1388.
We concluded that the contractual provision at issue was contrary public policy, citing various espoused by rationales 142-143, jurisdictions. other Id. at at A.2d 1388. Howev- policy 6. The reads as follows: OUR E. LIMIT OF LIABILITY autos, Regardless insureds, 1. of the number of covered claims accident, or made vehicles in pay involved the the most will all damages resulting any from one accident is the limit of uninsured motorists insurance shown in the declarations. Any payable 2. by: amount under this shall insurance be reduced paid payable All a. sums or under compensation, disability benefits similar law.
Relying on Selected Court held:
Superior sanction, interpreted graphic MVFRL be can [T]he terms, claimant/employ- Legislature’s condonation of unin- compensation and right ee’s to secure both workmen’s injuries. from work related resulting sured motorist benefits approve payment Risks [Selected ] We read subject to obtainment originating, claims for benefits *8 claimant, scheme through compensation the workmen’s an policy and the uninsured motorist obtained recovery employee’s employer. (cita-
Chatham,
59-60,
n. 8
See also Hackenberg at
Second, the
holdings
Chatham and Ferry
only
create
exception
narrow
to the
exclusivity provision of the
Act,
77 P.S.
for when employees attempt
to recover
both workers’ compensation benefits as well as uninsured
motorist benefits
their
through
employer’s policies. Compara-
tively,
rejected
ability
of employees to recover both
types of benefits when the employer is self-insured. Hacken-
berg,
Moreover, repeal Sections and 1737 of the MVFRL in 1993 has recovery assured that the double sanc- tioned in Ferry Chatham and longer is no permitted.7 1993). §§ (repealed Pa.C.S. agree We with the Superior Court’s conclusion changes
these in the were law intended the legislature to proclaim the supremacy of the exclusivity provision [Act’s] and to reaffirm the principle that an may seek recovery double injury. legislature a work-related has time again tried to make it clear that worker’s [sic] are compensation benefits remedy be the exclusive legislature repealed also sections 1720 and 1722 of the MVFRL in they compensation. insofar related workers' 1993). §§ (repealed part *9 intentionally for those injuries, save employment-related of the entire treatment legislative inflicted. Given find we cannot compensation, worker’s concept of [sic] intended concluding legislature that the basis for reasonable inference. Had repeal [Act] [Section] to an the remedies available expand intended legislature accident, it we believe injured in vehicle a motor it in (by including clearly that intent expressed have would amendments) than sub silentio. rather its recent Ducjai, at of our foregoing light
Finally, we examine summary judgment: grant for a standard of review plead- ‘the granted where judgment properly is Summary and admission interrogatories, answers ings, depositions, file, affidavits, if show that there any, with the together on the moving fact and that genuine issue of material is no ‘The as a matter of law’---- judgment entitled to party is to the light in the most favorable must be viewed record of a all as to the existence nonmoving party, and doubts against the must be resolved genuine issue of material fact be entered Summary judgment may moving party’____ is clear and free right those cases where the only doubt. Centre, County
Pennsylvania University State (1992) (citations omitted). 144-145, fact, of material we find that genuine there is no issue Because appropriate. summary judgment favor of Dennis was not recover employee may that an Accordingly, we hold her as benefits from both under co-employee common law from her well as during accident in an automobile when entry scope employment. of her the course is affirmed. summary judgment in favor Dennis in which Justice CAPPY, J., concurring opinion files a FLAHERTY, J., joins. J.,
MONTEMURO, sitting by designation.
CAPPY, Justice, concurring. I case, Although agree with the result in I believe the issue is not as forth by Majority. intricate set Simply put, the issue is whether Appellant is barred from seeking *10 compensation from her co-employee, Appellee Dennis. The § answer is clear under 77 72 of Compensa- P.S. the Workers (the “Act”): tion Act
If disability or compensable act, death is under this person shall not be liable anyone at common or law disability on any otherwise account of such or death for act occurring person or omission while such inwas the employ same person killed, as the except disabled for wrong. intentional
[Emphasis Accordingly, added]. under the “co-em- so-called Dennis,is §of ployee rule” not Appellant. liable to Apple Reichert, (1971); Sylvester v. Peruso, 286 (Pa.Super.1981).
IWhere believe the errs is in Majority way the the Majority frames the issue: whether the MVFRL expressed legislative intent to alter the an regarding law employee’s liability tort injuries by co-employee.1 sustained Majority and the Superior Court equated below have this cáse to those Act, involving § 481 of exclusivity provision, the the and have § attempted to reconcile 72 of the Act with the Motor Vehicle Law, Financial Responsibility § 1701 et seq. (MVFRL). That exercise is not required this case. The involving § cases the interaction between 481 of the Act and §§ 1720 and 1735 of the analogous MVFRL are not the facts of this case.
It first §§ must be noted that 1720 and of the rather, MVFRL not liability; do determine they pertain subrogation, coverage, and the coordination benefits among Thus; the liable parties. whether party one is liable to by looking another must first be determined to other relevant case, Act, § law. it is 72 of the provides which a type acknowledge way I Appellant's that this the issue was framed in petition appeal, for allowance granted' by which was this Court. law that provides Since that “immunity” co-employees. and case, §§ in this held liable Appellee cannot be implicated. of the MVFRL are scrutinizing borne out conclusion is further This interplay which examined Majority have cited cases cases MVFRL. These the Act and the § 481 of between in question than that different issue fundamentally involve a exclusivity Act refers to the here. Section has in recognizes employer employer’s liability, liability: fact assumed already be liability employer under this Act shall of an liability to such all other place and in exclusive ... employees Thus, has [emphasis added].
77 P.S. limit 481 is to purpose and the already assumed In the can receive. the amount of *11 ob- Majority, respective plaintiffs cases discussed employer benefits from their Compensation tained Workers’ (who trying but were also liability), therefore has conceded policy of employer’s under their insurance benefits obtain Clearly, of remedies exclusivity motor vehicle insurance. scenarios, since the those implicated is provision, question thus the re- liability, has conceded is the entitled? mains: to what Although from the instant case. That is different quite benefits from Compensation Workers’ has received Appellant co-employee trying is also hold her employer, her she liable> policy co-employee’s personal under her and receive benefits difference, and I significant this is of insurance. believe without question the Act answers the find that noted above case, there is provides. this regard to what the MVFRL first co-employee of the part no on the simply be instance; damages Appellant may of what question is there- co-employee from the under the MVFRL entitled to it clear that co- legislature has made irrelevant. fore another, I and do to one 77 P.S. are not liable employees by motor is covered that because believe vehicle analysis insurance the Simply put, altered.2 JVTVFRL does not alter Compensation Workers’ Act’s determining scheme for I liability. Accordingly, agree cannot analysis with the Majority but concur in the result. FLAHERTY, J., joins concurring opinion. Pennsylvania, Appellee,
COMMONWEALTH GERSTNER, Appellant. Harold Supreme Pennsylvania. Court of
Submitted June 1994. Decided March *12 instance, For injured if one negli- another at work gent machinery, use would be barred from suing negligent employee, though negligent employee even may die be covered some (typically, form insurance homeowners' insur- ance). case, typical In the we do not even consider other insurance negligent employee may have.