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ERIE INSURANCE EXCHANGE v. KENNETH P. FLEAGLE (01/23/81)

filed: January 23, 1981.

ERIE INSURANCE EXCHANGE, DONALD L. TAPPAN, AND BOROUGH OF CAMP HILL, APPELLANTS,
v.
KENNETH P. FLEAGLE, PAULINE FLEAGLE, WEST AMERICAN INSURANCE CO., PMA INSURANCE COMPANY, AND L. B. SMITH, INC.



No. 1486 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Cumberland County, Civil Action, No. 3892 Civil 1978.

COUNSEL

Clyde W. McIntyre, Harrisburg, for appellants.

Craig Stone, Harrisburg, for appellees.

Price, Watkins and Hoffman, JJ. Price, J., files a dissenting opinion.

Author: Hoffman

[ 285 Pa. Super. Page 312]

Appellants in this declaratory judgment action contend that the lower court erred in concluding that appellee Kenneth P. Fleagle was not a "victim" as defined by the Pennsylvania No-fault Motor Vehicle Insurance Act*fn1 and thus not entitled to basic loss benefits provided by that Act. Appellants additionally raise several related contentions involving the rights and liabilities of the parties. For the reasons which follow, we reverse the order of the court below.

The facts are not in dispute and may be summarized as follows. On June 17, 1976, appellee Kenneth P. Fleagle was

[ 285 Pa. Super. Page 313]

    employed as a transmission mechanic by appellee L. B. Smith, Inc. On that day a patrol car driven by appellant Donald L. Tappan, a police officer employed by appellant Borough of Camp Hill, struck and injured Mr. Fleagle as he was crossing his employer's parking lot to retrieve a car which he intended to drive into the garage for service. Mr. Fleagle and his wife, appellee Pauline Fleagle, instituted a trespass action against Mr. Tappan and the Borough of Camp Hill to recover for personal injuries sustained in the accident. While that action was pending, appellants*fn2 brought this declaratory judgment action against the Fleagles, West American Insurance Company (the insurer of the Fleagles' personal automobile), Mr. Fleagle's employer, and PMA Insurance Company (the employer's workmen's compensation carrier, which had paid benefits for Mr. Fleagle's medical expenses and lost wages resulting from the accident). The lower court entered an order which provided, inter alia, that Mr. Fleagle was not entitled to basic loss benefits pursuant to the No-fault Act. Appellants then took this appeal.

Section 201 of the No-fault Act, 40 P.S. § 1009.201, provides in part: "If the accident resulting in injury occurs in this Commonwealth, any victim. . . is entitled to receive basic loss benefits in accordance with the provisions of this act." (Emphasis added). Section 103 of the No-fault Act, 40 P.S. § 1009.103, defines "victim" as "an individual who suffers injury arising out of the maintenance or use of a motor vehicle. . . ." (Emphasis added). Section 103 further states:

"Maintenance or use of a motor vehicle" means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it. Maintenance or use of a motor vehicle does not include:

(A) conduct within the course of a business of repairing, servicing, or otherwise maintaining motor vehicles unless the conduct occurs off the business premises . . . .

[ 285 Pa. Super. Page 314]

Thus, Mr. Fleagle was not a "victim" under the No-fault Act if his injuries "ar[ose] out of . . . conduct within the course of a business of repairing, servicing, or ...


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