No. 544 Pittsburgh, 1980, Appeal from an Order of the Court of Common Pleas of Washington County, Civil Division-Trespass, No. 260 October Term, 1978 AD.
Salvatore F. Panepinto, Charleroi, for appellants.
Charles C. Keller, Washington, for appellees.
Hester, Brosky and Van der Voort, JJ. Van der Voort, J., files a dissenting statement.
[ 288 Pa. Super. Page 193]
This is an appeal from the Order of the Court of Common Pleas of Washington County granting appellees' motion for summary judgment. The procedural history and facts relevant to the issue on appeal are as follows:
Appellants instituted an action in trespass against appellees based upon injuries received in an automobile accident which occurred on October 26, 1976 at approximately 9:30 a. m. At that time appellants were driving in a northerly direction on Legislative Route 62141 in the Borough of Long Branch, Washington County. Appellees' vehicle was being operated in the opposite direction when a 50 gallon drum of antifreeze fell from the truck striking appellants' vehicle and allegedly causing the injuries set forth in appellants' complaint. Appellants sought tort liability under the provisions of Section 301(a)(5)(C) of the No-Fault Act, claiming they were unable to perform their usual and customary activities for a period in excess of 60 days.
Appellees filed an answer and submitted interrogatories to appellants, which were answered. Appellees then filed a motion for summary judgment alleging that appellants failed to meet the threshold requirements of the Pennsylvania No-Fault Act. Appellants filed an affidavit in support of their opposition to the motion, averring that they had been incapacitated for a period substantially in excess of sixty (60) days. The trial court granted the motion for summary judgment and this timely appeal followed.
Appellants contend the court below erred in granting the motion. They allege the requirements of Section 301(a)(5)(C) of the Pennsylvania No-Fault Motor Vehicle Insurance Act had been met.
Section 301 of the Pennsylvania No-Fault Motor Vehicle Insurance Act reads as follows:
[ 288 Pa. Super. Page 194]
(a) Partial Abolition -- 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 ...