No. 135 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Delaware County, Civil Action - Law, No. 79-14585.
Gene A. Foehl, Media, for appellant.
Joseph W. McGuire, Philadelphia, for appellee.
Price, Wickersham and Lipez, JJ.
[ 280 Pa. Super. Page 489]
This appeal presents our court with another question of first impression involving interpretation of the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1 Simply stated, the question presented is: What event triggers the commencement of the two year statute of limitations on tort actions arising from motor vehicle accidents? We agree with the conclusion of the trial court that the two year period commences on the date the injury is sustained and not on the date the plaintiff meets the threshold limits delineated in the No-fault Act. Accordingly, we affirm the order of the court of common pleas.
The pertinent facts are as follows. Appellant was injured on December 11, 1976, when an automobile in which she was riding was struck from behind by a vehicle driven by appellee. It was not until September 6, 1979, that appellant filed a complaint against appellee and alleged, inter alia, that due to appellee's negligent operation of his motor vehicle, she sustained injuries of a severe and permanent nature and incurred expenses in excess of the threshold amounts specified in sections 301 and 202 of the No-fault Act. Appellee filed preliminary objections and asserted that appellant's cause of action was barred by the statute of limitations as defined in the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, 42 Pa.C.S. § 5524. The trial court sustained appellee's preliminary objections, thereby dismissing appellant's complaint. It is from this order that appellant appeals.
Initially, we note that when considering preliminary objections in the nature of a demurrer, we accept as true all well-pleaded material facts in the complaint as well as all inferences reasonably deducible therefrom. Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Vitteck v. Washington Broadcasting Co., 256 Pa. Super. 427, 389 A.2d 1197 (1978); Barto v. Felix, 250 Pa. Super. 262, 378
[ 280 Pa. Super. Page 490]
A.2d 927 (1977). In this endeavor, we are mindful that preliminary objections should be sustained and a complaint dismissed only in cases that are clear and free from doubt, i. e., it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Allstate Insurance Co. v. Fioravanti, supra; Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970); Vitteck v. Washington Broadcasting Co., supra.
One of the key features of the No-fault Act is the abolition of tort liability. Under section 301 of the Act, tort liability with respect to any injury arising out of the maintenance or use of a motor vehicle in this Commonwealth is abolished except in situations in which, inter alia : (1) a vehicle involved in the accident was "unsecured"; (2) the infliction of injury was intentional; (3) the injured sustains loss in excess of the limitations for allowable expense, work loss, replacement services loss, or survivors loss as specified in section 202*fn2 of the Act; (4) the injury is not covered by basic loss benefits payable under section 103; or (5) non-economic detriment is incurred and the accident resulted in: (a) death or serious and permanent injury; (b) reasonable and
[ 280 Pa. Super. Page 491]
necessary medical and dental services, with certain exclusions, in excess of $750; physical or mental impairment that prevents the injured from performing all or substantially all of his usual and customary duties for more than sixty days; or (c) cosmetic disfigurement which is permanent, irreparable and severe. In her complaint, appellant averred that she suffered injuries of a serious and permanent nature, sustained loss that "may exceed" the recoverable limits delineated in section 202 of the Act, and incurred medical expenses in excess of the $750 threshold amount specified in section 301. On appeal, appellant contends, in essence, that because under the Act, one is not liable for allowable expense, work loss, survivors loss, replacement services loss, or non-economic detriment until the threshold amounts are met, the statute of limitations ...