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JOHNSON v. YELLOW CAB COMPANY PHILADELPHIA (03/26/74)

decided: March 26, 1974.

JOHNSON, APPELLANTS,
v.
YELLOW CAB COMPANY OF PHILADELPHIA



Appeal from decree of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1971, No. 2713, in case of Doris Johnson, Donald Johnson and Arthur MacMillan v. Yellow Cab Company of Philadelphia.

COUNSEL

Edwin P. Smith, with him Mendel, Dubyn, Schwartz and Smith, for appellants.

Bernard G. Segal with him Charles C. Hileman, III, and Schnader, Harrison, Segal & Lewis, for appellee.

David B. Fawcett, Jr., M. Richard Dunlap, and Dickie, McCamey & Chilcote, for Yellow Cab Company of Pittsburgh, amicus curiae.

Lewis H. Van Dusen, Jr., with him David P. Bruton, and Drinker, Biddle & Reath, for Southeastern Pennsylvania Transportation Authority, amicus curiae.

James M. Penny, Jr., Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor, and Martin Weinberg, City Solicitor, for City of Philadelphia, amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Manderino. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts and Mr. Justice Nix join in this dissenting opinion.

Author: Manderino

[ 456 Pa. Page 258]

The appellants, Doris Johnson, her husband, Donald Johnson, and Arthur MacMillan, sued the appellee, Yellow Cab Company of Philadelphia, owner of a taxicab which was struck from behind on November 12, 1970, by a vehicle driven by an uninsured motorist. Doris Johnson and Arthur MacMillan were passengers in the taxicab. The complaint alleged negligent conduct by the uninsured motorist, but did not allege any negligent conduct by Yellow Cab. The trial court sustained Yellow Cab's demurrer to the complaint and an appeal followed to this Court. We reversed the order of the trial court and remanded the case for trial. Subsequently, Yellow Cab's petition for reargument was granted. Petitions were also granted permitting the City of Philadelphia, the Southeastern Pennsylvania Transportation Authority, and the Yellow Cab Company of Pittsburgh, to file briefs and participate in the oral argument as amicus curiae. After further consideration, we affirm the order of the trial court sustaining Yellow Cab's demurrer to the appellants' complaint. The allegations of the complaint do not sustain any cause of action presently recognized in Pennsylvania. The complaint contains no facts indicating any intentional or negligent tortious conduct, nor any contractual breach of any kind by Yellow Cab. The appellants do not contend otherwise. They argue, however, that the complaint states a statutory cause of action against the appellee, Yellow Cab. The statute relied on is the Uninsured Motorist Act, Act of August 14, 1963, P. L. 909 § 1, as amended, 40 P.S. § 2000.

The only allegations in the complaint concerning Yellow Cab were that (a) Yellow Cab, a common carrier, owned the taxicab struck in the rear by the uninsured motorist; (b) Yellow Cab is a self-insured liability insurance carrier under and pursuant to the laws of the Commonwealth of Pennsylvania; and (c) Yellow

[ 456 Pa. Page 259]

Cab has not filed a written rejection of uninsured motorist coverage with the Commonwealth of Pennsylvania or any agency thereof. The appellants argue that if these allegations are true, a statutory cause of action is stated because the Uninsured Motorist Act requires the appellee, Yellow Cab, to carry uninsured motorist coverage unless such coverage has been rejected in writing. Since the complaint alleges that appellee has not filed a written rejection of uninsured motorist coverage, appellants insist that such coverage exists or the law should assume that such coverage exists under the Uninsured Motorist Act.

We cannot accept appellants' contentions. The Uninsured Motorist Act provides that "No motor vehicle liability policy of insurance . . . shall be delivered or issued for delivery in this State . . . unless coverage is provided therein . . ." for the protection of persons against uninsured motorists. It further provides that a motor carrier under the jurisdiction of the Public Utility Commission, such as Yellow Cab, ". . . shall have the right to reject such coverage in writing. . . ." Act of August 14, 1963, P. L. 909 § 1, as amended, 40 P.S. § 2000 (emphasis added). The appellants have alleged that the appellee is self-insured but they have not alleged the existence of any liability policy of insurance. This precludes any cause of action under the Uninsured Motorist Liability Act since that Act applies only when a liability policy of insurance is delivered or issued for delivery. If no liability policy of insurance exists, that Act, does not apply. One who is self-insured does not ...


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