Appeal from the Order of the Court of Common C.A., L. Pleas of Luzerne County at No. 10839 of 1975. NO. 1767 OCTOBER TERM, 1976.
Arthur Silverblatt, Wilkes-Barre, for appellant.
John G. Swatkoski, Wilkes-Barre, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 247 Pa. Super. Page 30]
The appellee was an uninsured driver of an uninsured car who suffered serious injuries in an automobile collision with a car owned by County Hauling, Inc. and insured by appellant insurance company. The accident occurred on August 7, 1975, and was within the grace period allowed for procurement of no-fault insurance under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. 1009.101 et seq.
Appellee has instituted an action in assumpsit against appellant insurance company charging that it is responsible for the payment of the benefits to an injured party which are provided by the No-Fault Act. Appellant filed preliminary objections in the nature of a demurrer on the grounds that the complaint failed to state a cause of action against appellant because appellee's recourse for payment was to the Assigned Claims Plan established under Section 108 of that Act instead of against appellant. Claims under the Assigned Claims Plan are allocated equitably among all insurance companies licensed in Pennsylvania to write auto insurance. The benefits payable to appellee will be the same in either event inasmuch as appellee's uninsured status was within the grace period for obtaining insurance and, therefore, not subject to any deductions as would have been the case had appellee's uninsured status been a violation of the Act.
The court below dismissed appellant's preliminary objections but amended its original order to include a certificate to the effect that in the opinion of the court its order involved a controlling question of law as to which there was substantial ground for a difference of opinion and that an immediate appeal from the order might materially advance the ultimate determination of the matter. An immediate appeal to this court followed.
This action is one of first impression. It presents for determination an interpretation of Section 204(a)(4) of the No-Fault Act which, in context, reads:
"(a) Applicable security. -- The security for the payment of basic loss benefits applicable to an injury to:
[ 247 Pa. Super. Page 31]
"(1) an employee, or to the spouse or other relative of any employee residing in the same household as the employee, if the accident resulting in injury occurs while the victim or deceased victim is driving or occupying a motor vehicle furnished by such employee's employer, is the security for the payment of basic loss benefits ...