Lewis v. School Dist. of Philadelphia
500 A.2d 141
Pa.
1985
Check Treatment

*1 earning requested and reduction of as past earnings power, however, the this court does not have appellant. (Again, charges the reviewing specific proposed benefit court.) above, (1) appellant in the trial As detailed failed to offer sufficient to raise an issue appellant evidence appellant of lost and failed to offer past wages to raise the of diminished earn- question sufficient evidence court therefore refused to ing capacity. properly The trial jury damages. instruct the on these claims for reasons, I foregoing appellant For the would find that the entitled to a trial. is not new LEWIS,

Jerry Appellant, W. PHILADELPHIA. SCHOOL DISTRICT OF Pennsylvania. Superior Court Argued March Filed Oct. *2 Perlstein, Philadelphia, appellant. Paul M. for Horowitz, Philadelphia, appellee. Martin SPAETH, Judge, President and JOHNSON and Before SHOYER,* JJ.

SHOYER, Judge: court appeal This case is an from an Order of the lower by arbitration his denying compel Petitioner’s motion employer. employment,

The while in the course of his was appellant, in accident caused an uninsured injured an automobile compensation appellant motorist. The received workmen’s uninsured from his and then demanded benefits herein, denied employer, appellee motorist benefits. The then filed a Petition to Com- appellant these benefits. 437, SEPTA, Pa. 469 citing Modesta v. 503 pel Arbitration (1983). petition appeal This was denied and this A.2d 1019 followed. in holding claims that because of the appellant unin-

Modesta, required are to maintain that self-insureds Act,1 Motorist coverage under the Uninsured sured motorist entitled to such benefits. he is

* SHOYER, Judge of Senior of the Court Kendall H. The Honorable designation. Philadelphia County, sitting by is Pleas of Common 909, Act, 14, 1963, August P.L. as amend- Motorist Act of 1. Uninsured 1, 1969, 1254, 397, January effective P.L. No. ed December seq. et 40 P.S. Secs. brief, appellant’s appellee, in its contends under the is limited to the benefits received Work- recovery Act.2 men’s court, opinion, in its cited v. National

The lower (1980), for the Co., Pa. Indemnity is compensation that workmen’s authority scope employee injured for an recovery means correctly court stated The lower employment. his unin- must holds that self-insurers while Modesta compel insurance does not coverage such motorist sured compensa- covered workmen’s employee to an in the course of tion, injured for those not is reserved but employment. their affirm.

We 43, 389 A.2d 591 SEPTA, Pa.Super. In Turner Court), the full (a opinion unanimous he was in a collision between bus injured of SEPTA *3 Court, in the denying This another vehicle. driving and benefits, in- stated that an claim for no-fault employee’s is the employer his remedy against employee’s sole jured 303, 77 Section P.S. Compensation Workmen’s as Act states 481(a) Compensation of the Workmen’s § follows: be under this act shall

“(a) of an liability to liability and all other any and place in wife, parents, or representative, employes, legal his such to entitled anyone kin or otherwise next of dependents, on account or otherwise at law damages in action any 301(c)(1)and in section as defined or death any injury in section 108.” as defined disease occupational or supplied) (Emphasis amended, effective on Act, became the as section of

This Act, amend- Motorist as 3, 1975. Uninsured February the 1, We believe January on ed, effective became applied can be in the Turner case reasoning and language uninsured motorists benefits by a claim 1974, Act, 481(a), as amended P.S. Compensation § 2. Workmen’s 6, days. effective in 60 § P.L. 782 No. December Turner, 2 in In No. as well as No-fault benefits. Footnote is stated: it Compensa- to decide that the

“2. Were we Workmen’s in manner irrecon- any tion Act and the No-fault Act were cilable, contained in the exclusivity provision the iron-clad 303 would control. ‘Whenev- 1974 amendment Section finally the of two or more statutes enacted provisions er irreconcilable, the during Assembly the same General are of its irrespective latest in date of final enactment statute Act, date, prevail.’ Statutory effective shall Construction IV, 28, 1937, P.L. art. 46 P.S. May Act of § § exception if had been opinion any

“We are of the that Act, surely would by legislature the No-fault the created it amend- incorporate exception seen fit to the when have Compensation Act. 303 of the Workmen’s ed Section legislature the of the question as to intention ‘Any the Act remedy created Workmen’s ...” exclusive is removed be amendment].’ [the relied on supra, of the in opinion majority Wagner, strong a attack reasoning despite and its upheld Turner It also observed minority. made should be the Uninsured in Footnote No. 3 stated that Modesta Court ... relate to the Act and the No-Fault Act “both Motorist they same subject, and deal with the persons same class of together.” and must be construed pari are in materia indicated its legislature clearly has We believe that scope of their employees injured intentions to exclude Motorists’ from both No-fault and Uninsured employment under the benefits, the benefits leaving only remedy their *4 Compensation Workmen’s

Affirmed. dissenting opinion.

SPAETH, Judge, President files a SPAETH, Judge, dissenting: President Act does Compensation I hold that the Workmen’s should motorist bene- pay to uninsured appellee’s liability not bar fits.

36 SEPTA, (1983),

Modesta v. 503 Pa. 469 A.2d 1019 unin- employer’s responsibility provide establishes the to motorist held that it was coverage. sured There the Court of no that was self-insured. consequence employer not, here, however, does our decision for Modesta control employer’s there the claimant not the driver of the question but a we must passenger. motor vehicle decide, therefore, employer’s responsibility is whether the for uninsured motorist is some reason provide the claimant is an who was eliminated when employment. Appellee in the course of his injured while held, is responsibility and the trial court argues, of the Com- provision indeed eliminated Workmen’s pensation Act that an under this act shall be liability of

[t]he place liability and in of all other to such em- 481(a). 77 P.S. ployes____ § argument. Appellee’s respon- I not this persuaded am motorist cover- under uninsured sibility Modesta employer.” “liability [appellee not a age was as] self-insured, carrier, uninsured motor- provides a or a When not for its own providing coverage, ist it is coverage, else, who should liability for the of someone liability, but coverage. 40 P.S. did not have his own have had but Mutual Casu- 2000(a); Harleysville Rosato v. Estate § (1984) (Unin- Co., Pa.Super. 328 alty recover that innocent victims sured Motorist Act ensures if uninsured tortfeasor they would have received damages insurance); Insurance Co. v. Washington had Provident (1984) (same). Rosato, Pa.Super. Act is therefore of the Workmen’s bar inapplicable. Co., 154, 422 492 Pa. Indemnity v. National employ- There the (1980), contrary. is not to the

A.2d 1061 motorist benefits but not for uninsured ee’s claim was Act is that it of the No-fault essence No-fault benefits. against the claimant cause of action any eliminated Bros., Pa.Super. v. Farrelly driver. Brunelli other *5 (1979). Therefore, responsibili- ty of an No-fault was a for the responsibility provide coverage employer’s own It on this that the Court held liability. basis under the No-fault Act as to an employer’s liability was barred the Workmen’s I should reverse the order of the trial court and remand the case for arbitration. Pennsylvania

COMMONWEALTH TESSEL, Appellant. Detlev Superior Pennsylvania. Court March

Submitted Filed Oct.