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ANTHONY LYNGARKOS v. COMMONWEALTH PENNSYLVANIA (02/26/81)

decided: February 26, 1981.

ANTHONY LYNGARKOS, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Erie County in the case of Anthony Lyngarkos v. Department of Transportation, Commonwealth of Pennsylvania, Mackay-Swift, Inc., individually and as agent for the Department of Transportation, William George, individually, No. 3192-A 1979.

COUNSEL

Michael T. Joyce, Orton, Nygaard & Dunlavey, Inc., for appellant.

William C. Sennett, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., with him Ritchie T. Marsh, Spaeder & Schaaf, for appellee, Mackay-Swift, Inc.

J. Lawson Johnston, Deputy Attorney General, with him Brian H. Baxter, Deputy Attorney General, for appellee, Department of Transportation.

William George, appellee, for himself.

Judges Mencer, Rogers and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 57 Pa. Commw. Page 123]

Anthony Lyngarkos has appealed from an order of the Court of Common Pleas of Erie County sustaining Mackay-Swift, Inc's (Mackay), a motor vehicle dealership, demurrer to a count of the appellant's complaint in trespass seeking damages from Mackay for the latter's issuance of a temporary motor vehicle registration card and plate without proof that the buyer had insurance.

Lyngarkos alleges that he is a citizen and resident of Pennsylvania; that Mackay is a new and used car sales corporation with its principal place of business in North East, Pennsylvania; that William George is a citizen and resident of New York; that on or about December 17, 1977, Mackay sold a 1971 Jeep to George and issued a Pennsylvania temporary registration card and plate for the Jeep; that Mackay issued the temporary registration plate as an agent for the Pennsylvania Department of Transportation; that at the time Mackay issued the temporary registration plate to George, George did not possess No-fault insurance coverage;*fn1 that on December 29, 1977, Lyngarkos was a passenger in the Jeep, being driven by Thomas Gratto in New York with the permission of George and that Gratto caused the car to leave the road resulting in an accident in which Lyngarkos suffered serious injuries; that as a result of the accident, Lyngarkos has incurred medical expenses in excess of $12,000.00 and has suffered a loss of earnings and an impairment of his earning capacity; and that, at the time of the accident, Lyngarkos did not operate or own a motor vehicle and did not live in a household in which an insured individual resided and therefore did not qualify

[ 57 Pa. Commw. Page 124]

    for coverage under the No-fault law of Pennsylvania or New York.

In the count directed to Mackay, Lyngarkos avers that Mackay knew or should have known that proof of No-fault insurance was required before issuing a temporary registration card and plate to George for the Jeep; that Mackay owed a duty to Lyngarkos and others similarly situated to insure that George had proper No-fault insurance coverage prior to issuing the temporary registration; that Mackay was negligent in issuing a temporary registration to George, thereby allowing George to operate the Jeep on public highways, without proof of No-fault insurance coverage; and that as a result of Mackay's negligence, Lyngarkos is unable to collect No-fault benefits for the injuries sustained in the accident. In other counts of the complaint Lyngarkos alleges that since Mackay acted as agent for the Department of Transportation for the distribution of temporary registration plates, the Department is liable and that George was negligent in failing to obtain No-fault insurance as required, and therefore also liable. However, as noted, we are concerned only with Mackay's demurrer.

The court below interpreted the count against Mackay as one to recover from Mackay for interference with Lyngarkos' right to recover No-fault benefits occasioned by the negligent failure of Mackay to secure proof that George had No-fault insurance prior to issuing the temporary registration card and plate. It then determined that Mackay had a statutory duty to make certain that George had No-fault insurance coverage before issuing a temporary registration plate; that this duty was owed to Lyngarkos and others in like circumstances; and that recovery may be had for Mackay's ...


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