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GARY L. SAMSEL v. TRAVELERS INDEMNITY COMPANY (02/05/82)

filed: February 5, 1982.

GARY L. SAMSEL, MASON L. SAMSEL AND JOANNE A. SAMSEL, HIS WIFE, APPELLANTS,
v.
THE TRAVELERS INDEMNITY COMPANY, NATIONWIDE MUTUAL INSURANCE COMPANY, UNIVERSAL UNDERWRITERS INSURANCE COMPANY, PENNSYLVANIA ASSIGNED CLAIMS PLAN AND ASSIGNED CLAIMS BUREAU



NO. 989 PHILADELPHIA, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Luzerne County, at No. 3774 of 1979

COUNSEL

John Arnold Crisman, Berwick, for appellants.

Anthony J. Lumbis, Wilkes-Barre, for Traveler's, Indem. Co., appellee.

Joseph J. Musto, Wilkes-Barre, for Nationwide, Mut. Ins. Co., appellee.

William W. Warren, Jr., Scranton, for Pennsylvania Assigned Claims Plan, appellee.

Hester, Cavanaugh and Van der Voort, JJ.

Author: Van Der Voort

[ 295 Pa. Super. Page 189]

The issues in this case are whether the operator of a motorcycle who was injured in a collision with an automobile covered under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., is entitled to recover no-fault benefits from the insurer of the automobile; and if not, whether his exclusion from coverage is constitutional.

The appellant, Gary L. Samsel, was the operator of a motorcycle, and Mason L. and Joanne A. Samsel are his parents. The three Samsels have sued to recover no-fault basic loss benefits based on Gary's injuries. They have named as defendants Nationwide Mutual Insurance Company, which was the insurance carrier for the operator of the automobile involved in the accident; The Travelers Indemnity Company, the insurance carrier for Mason L. Samsel;

[ 295 Pa. Super. Page 190]

Universal Underwriters Insurance Company, the issuer of a motorcycle insurance policy for Gary L. Samsel; and Pennsylvania Assigned Claims Plan and Assigned Claims Bureau. The Bureau is in the same position as the other insurance carriers with respect to appellants' claim. The Assigned Claims Plan was established under Section 108 of the No-Fault Act, 40 P.S. § 1009.108(b), to provide basic loss benefits to victims with claims covered by the Act, but who were unable to collect such benefits from an insurance carrier for any of the reasons set forth in § 108(b). Universal Underwriters Insurance Company could not be located and was not served with process.

The appellees who were served with process have each filed Preliminary Objections to the Complaint in the nature of demurrers. The lower Court has sustained their objections and dismissed the Complaint.

It is the appellants' position that the operator of the motorcycle was the "victim" of a collision with an automobile covered by the No-Fault Act as defined in Section 201, 40 P.S. § 1009.201(a), and that as a consequence he is entitled to receive ...


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