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October 27, 1981

Robert E. KNAPPENBERGER and Ruth Knappenberger, Plaintiffs,
Frank E. BITTNER, Defendant

The opinion of the court was delivered by: WEBER


This matter is a negligence action arising out of a motor vehicle accident. Certain issues have been raised by counsel for both parties which the court has ordered briefed. Those questions are: a) the applicability of Pennsylvania No-Fault Insurance, b) the existence of subrogation rights and the joinder of any real parties in interest under Fed.R.Civ.P. 17(a) and c) the deductibility of any workmen's compensation award from damages received in this action. We herein address these matters in the order stated above.

 In this negligence action, defendant has raised the applicability of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.Stat.Ann. § 1009.101 et seq. (hereinafter No-Fault Act), as a defense to a portion of the damages sought by the plaintiff in connection with a motor vehicle accident occurring in Pennsylvania. This question is controlled by the decision of the Superior Court in Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980), and accordingly we hold that a non-resident victim such as this plaintiff has a right to sue in tort for all items of damage, free from the provision of the No-Fault Act partially abolishing tort liability in Pennsylvania.

 Plaintiff and his wife are residents of Ohio, a state which does not have a no-fault statute. The defendant is a resident of Pennsylvania. On August 20, 1979, plaintiff was driving a semi-truck on U.S. Route 30 in Jenner Township, Somerset County, Pennsylvania, when he collided with a vehicle operated by the defendant. Plaintiff has recovered workmen's compensation benefits from his employer's insurer under Ohio law for his injuries sustained in the collision.

 Plaintiff instituted this suit for damages including wage loss and medical costs as a result of defendant's negligence. By Amended Answer, defendant contends that a portion of the damages claimed by the plaintiff in this suit must be recovered from some other party's insurer under the No-Fault Act. Plaintiff contends that the provisions of the Pennsylvania No-Fault Act do not apply to him as a non-resident victim, and if they do apply, he may waive any remedy thereunder and pursue a common law tort claim under the law of Ohio to recover the entire amount of damages. The holding in Toter is in accord with the plaintiff's position, and he may therefore forego the prescribed No-Fault remedies and maintain a tort claim for the full amount of his damages.

 In Toter, a New Jersey resident was involved with a Pennsylvania resident in a motor vehicle accident in this state. Plaintiff alleged medical expenses exceeding $ 200, the applicable threshold figure in New Jersey's No-Fault statute. N.J.S.A. § 39:6A-8 (1973). Under that section a victim may only sue in tort for amounts in excess of the threshold figure.

 The Pennsylvania No-Fault Act has a similar but distinctive provision in 40 Pa.Stat.Ann. § 1009.301(a). That section abolishes tort liability in Pennsylvania with specific exceptions. Section 1009.301(a)(5) permits suit in tort for medical expenses in excess of $ 750, a higher threshold than that provided in the New Jersey statute.

 The plaintiff in Toter alleged medical expenses in excess of $ 200, the New Jersey threshold, but did not allege in excess of the $ 750 Pennsylvania threshold. The state trial court granted defendant's preliminary objections, believing § 1009.301(a) had abolished tort liability below the Pennsylvania Act's threshold amount in all instances. The Superior Court reversed, deciding that a non-resident plaintiff is accorded by § 1009.110(c)(2) the same rights to sue in tort as he enjoys in the state of his domicile, and that a non-resident's right to sue in tort is in no way abolished or limited by the provisions of § 1009.301(a).

 In the instant case, plaintiff asserts his right to sue the defendant in tort for the full extent of his damages under § 1009.110(c)(2) which states in pertinent part:

(2) The right of a sue in tort shall be determined by the law of the state of domicile of such victim.

 On the face of it, and without referring to § 1009.301(a), "Tort Liability: Partial Abolition", the above quoted section would appear to reserve to non-residents the same right to sue in tort as they enjoy in their home states irrespective of the application of other provisions of the Pennsylvania No-Fault Act. See also, Dubose v. McCoy, 277 Pa.Super. 149, 419 A.2d 705 (1980); Flowers v. Smith, 12 Pa.D.&C.3d 434 (1979). This is the holding of Toter, and we will therefor permit plaintiff in this case to proceed with his tort action for all items of damages without referring him to no-fault insurers for the threshold amounts.

 While we apply here the rule espoused in Toter, we find the arguments of the dissent in that decision attractive in their application to the facts of this case. That dissent places special emphasis on an integral portion of the No-Fault Act, § 1009.301(a), which states in part:

(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 ...

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