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ANGELA M. HAYES v. ERIE INSURANCE EXCHANGE (12/20/78)

decided: December 20, 1978.

ANGELA M. HAYES, APPELLANT AT 505,
v.
ERIE INSURANCE EXCHANGE, APPELLANT AT 487



No. 487 April Term, 1978, No. 505 April Term, 1978, Cross Appeals from Order dated December 1, 1977, Court of Common Pleas, Civil Division, of Erie County, at No. 1886 A 1976.

COUNSEL

T. Warren Jones, Erie, for appellant at No. 487, and appellee at No. 505.

Joseph A. Yochim, Erie, for appellee at No. 487, and appellant at No. 505.

Cercone, Hoffman and Wieand, JJ.

Author: Wieand

[ 261 Pa. Super. Page 173]

An action in assumpsit was brought by Angela M. Hayes, appellee herein, against Erie Insurance Exchange, appellant, to recover benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. The trial court entered summary judgment holding that basic loss benefits were recoverable against the insurer. The court refused, however, to make an award of counsel fees to appellee. When Erie Insurance Exchange filed an appeal to this Court, Hayes filed an appeal from the denial of her motion for an award of an attorney's fee.

The facts are not in dispute. On the evening of January 6, 1976, appellee had parked her vehicle on State Street, near

[ 261 Pa. Super. Page 174]

Thirtieth Street, in the City of Erie. The vehicle was registered but not insured as required by Section 104 of the No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.104. After emerging from this vehicle, appellee walked to the corner of Thirtieth and State Streets and while crossing the intersection was struck by an automobile operated by Laurie A. Felgar and insured by appellant, Erie Insurance Exchange. As a consequence of the accident, appellee sustained multiple injuries which included injuries to the head and a fractured pelvis. A claim was made to appellant insurer under the "No-fault" statute for appellee's medical expenses and lost earnings. The claim was denied.

Section 204(a) of the No-fault Act, 40 P.S. § 1009.204(a), establishes the source for payment of basic loss benefits as follows:

"(a) Applicable security. -- The security for the payment of basic loss benefits applicable to an injury to:

(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 ...


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