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MICHAEL TOTER v. SARA E. KNIGHT (06/06/80)

filed: June 6, 1980.

MICHAEL TOTER, APPELLANT,
v.
SARA E. KNIGHT



No. 472 October Term 1979, Appeal from the Order in the Court of Common Pleas of Bucks County, Civil Action-Law at No. 78-117-04-2.

COUNSEL

Charles J. Conturso, Morrisville, for appellant.

Charles McIlhinney, Doylestown, for appellee.

Spaeth, Hester and Cavanaugh, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Spaeth

[ 278 Pa. Super. Page 548]

This appeal arises from an order sustaining preliminary objections and dismissing an amended complaint in trespass.

The allegations of the amended complaint may be summarized as follows. On September 9, 1976, appellant was operating an automobile in Bucks County and collided with

[ 278 Pa. Super. Page 549]

    an automobile operated by appellee. At the time of the accident, appellant was a resident of New Jersey, and his automobile was registered in that state. Appellee was a resident of Pennsylvania, and her automobile was registered here. The collision occurred as a result of appellee's negligence, and caused appellant physical injuries for which appellant has or will incur medical expenses exceeding $200.00, "exclusive of hospital expenses, x-rays and other diagnostic medical expenses," and also caused appellant physical pain and mental anguish. The complaint further alleged that under Pennsylvania law, appellant's right to sue on account of these injuries was to be determined by the law of the state of his domicile, i. e., New Jersey, and that under section 6A-8 of the New Jersey Automobile Reparation Act, N.J.S.A. § 39: 6A-8 (1973), a victim of an automobile accident has the right to sue in tort whenever the cost of medical treatment, exclusive of x-rays, hospital bills, and other diagnostic expenses exceeds $200.

On February 22, 1978, appellee filed preliminary objections to the amended complaint, which the lower court sustained on February 14, 1979. The lower court believed that appellant's action was barred by section 301(a) of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.301(a) (1979-80 Supp.), which provides:

Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance or use of a motor vehicle, except that

(5) A person remains liable for damages for non-economic detriment if the accident results in:

(B) the reasonable value of reasonable and necessary medical and dental services, including prosthetic devices and necessary ambulance, hospital and professional nursing expenses incurred in the diagnosis, care and recovery of the victim, exclusive of diagnostic x-ray costs and rehabilitation costs in excess of one hundred dollars ($100) is in excess of seven hundred fifty dollars ($750).

[ 278 Pa. Super. Page 550]

The lower court held that appellant had not met this $750 threshold requirement, since the amended complaint alleged that appellant's medical expenses were in excess of only $200.*fn1

Section 110(c)(2) of the Pennsylvania No-Fault Act, 40 P.S. § 1009.110(c)(2) (1979-80 Supp.), provides:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. If a victim is not domiciled in a state, such right to sue shall be determined by the law of the state in which the accident resulting in injury or damage to property occurs.

This provision has been criticized as being "impossible of interpretation or execution." Barrett, Pennsylvania No-Fault Motor Vehicle Insurance Act: Practice Under the Act 102 n. 51 (Pa. Bar Institute 1975). We do not find it all that obscure. The provision embodies two choice-of-law principles:

[ 278 Pa. Super. Page 5511]

) The right of the victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile; and 2) if the victim is not domiciled in a state, the victim's right to sue shall be determined by the law of the state in which the accident occurred. The first principle applies to this case, for the amended complaint alleges that appellant was domiciled in New Jersey at the time of the accident. It therefore follows the appellant's right to sue must be determined by the law of New Jersey, not Pennsylvania, and it further follows that appellant's action in not barred by section 301(a).

In holding that appellant's action was barred, the lower court found an irreconcilable conflict between sections 110(c)(2) and 301(a). The lower court emphasized that under section 301(a) "[t]ort liability is abolished with respect to any injury that takes place in this State," and that the words "any injury" necessarily encompass injuries by non-residents. While we concede that section 301(a) might have been more tightly ...


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