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PATRICIA MODESTA v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY (05/21/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 21, 1982.

PATRICIA MODESTA, APPELLANT,
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY

No. 274 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Equity, at No. 392, March Term, 1980.

COUNSEL

Susan K. Eisenberg, Philadelphia, for appellant.

Norman Hegge, Jr., Philadelphia, for appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Hoffman

[ 300 Pa. Super. Page 7]

Appellant contends that appellee, a self-insured, was required to provide uninsured motorist protection to its passengers, and thus, the lower court erred in sustaining appellee's preliminary objections and dismissing appellant's complaint for failing to state a cause of action. We disagree and, accordingly, affirm the order of the lower court.

It is well-settled that

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deductible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained, and the law will not permit a recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer.

Gekas v. Shapp, 469 Pa. 1, 5-6, 364 A.2d 691, 693 (1976) (citations omitted). Appellant's complaint alleged that on March 2, 1978, she was severely injured when a motorist negligently crashed into the rear of appellee's bus, on which she was riding. Appellant alleged no negligence on the part

[ 300 Pa. Super. Page 8]

    of appellee or any of its employees. Appellee is "self-insured" pursuant to the No-fault Motor Vehicle Insurance Act*fn1 and the motorist was "uninsured" under the Uninsured Motorist Act.*fn2 Appellant alleged that appellee was required to provide uninsured motorist protection to its passengers and demanded arbitration. Appellee refused to arbitrate and filed preliminary objections asserting, inter alia, that appellant had failed to state a cause of action. The lower court, relying upon Johnson v. Yellow Cab Co., 456 Pa. 256, 317 A.2d 245 (1974) (self-insureds need not provide uninsured motorist protection), sustained appellee's preliminary objections and dismissed the complaint. This appeal followed.

The Uninsured Motorist Act requires that uninsured motorist protection be provided in every "motor vehicle liability policy of insurance . . . delivered or issued for delivery in this State." 40 P.S. § 2000(a). It also provides that motor carriers such as appellee "shall have the right to reject such coverage in writing." 40 P.S. § 2000(a)(2). These provisions were interpreted in Johnson to "appl[y] only when a liability policy of insurance is delivered or issued for delivery. If no liability policy exists, [the Uninsured Motorist] Act, does not apply. One who is a self-insured does not have a liability policy of insurance." 456 Pa. at 259, 317 A.2d at 247. Thus, the Uninsured Motorist Act does not apply to self-insureds. Id.; Mitchell v. Philadelphia Electric Co., 281 Pa. Superior Ct. 452, 422 A.2d 556 (1980). Further, the Court dismissed the contention that a self-insured is required to "reject such coverage in writing," because "[o]ne cannot reject coverage unless such coverage has been offered in a liability policy of insurance." Johnson v. Yellow Cab Co., supra, 456 Pa. at 261, 317 A.2d at 248.*fn3

[ 300 Pa. Super. Page 9]

Under the No-fault Act, every owner of a motor vehicle registered or operated in Pennsylvania shall provide security for personal injuries and property damage sustained in an automobile accident. 40 P.S. § 1009.104(a). Such security may be provided "by a contract of insurance with an insurer or by qualifying as a self-insurer or as an obligated government." Id. In order to qualify as a self-insurer, one must file with the Pennsylvania Department of Transportation in satisfactory form:

(1) a continuing undertaking by the owner or other appropriate person to pay basic restoration benefits and any tort liability required in amounts not less than those required, by subsection (a) of this section, to perform all obligations imposed in accordance with this act, and to elect to pay such added restoration benefits as are specified in the undertaking;

(2) evidence that appropriate provision exists for prompt and efficient administration of all claims, benefits, and obligations provided in accordance with this act; and

(3) evidence that reliable financial arrangements, deposits, resources, or commitments exist providing assurance substantially equivalent to that afforded by a contract of insurance complying with this act for payment of no-fault benefits, any required tort liability, and performance of all other obligations imposed in accordance with this act.

40 P.S. § 1009.104(b).

Appellant concedes that the No-fault Act does not specifically provide that the security required comply with the provisions of the Uninsured Motorist Act. Nevertheless, she argues that "the No-fault Act, by requiring security not only for basic restoration benefits but also for tort liability, impliedly mandates that its provisions be read and interpreted

[ 300 Pa. Super. Page 10]

    in conjunction with the Uninsured Motorist Act."*fn4 Appellant's Brief at 18-19. Appellant ignores, however, the language limiting the tort liability that must be covered by self insurance -- "an undertaking . . . to pay basic restoration benefits and any tort liability required in amounts not less than those required, by subsection (a) of this section, to perform all obligations imposed in accordance with this act." It does not include uninsured motorist protection. Appellant seeks to construe the statute to extend the coverage to tort liability outside of the Act. Such an interpretation renders meaningless the words immediately following "tort liability." "It is well-settled that '[t]he legislature cannot be deemed to intend that its language be superfluous and without import.'" Consumers Education and Protection Association v. Nolan, 470 Pa. 372, 387, 368 A.2d 675, 683 (1977), quoting Daly v. Hemphill, 411 Pa. 263, 273, 191 A.2d 835, 842 (1963). A fair reading of the subsection, requires a self-insured to provide coverage in amounts not less than those required under the No-fault Act. It does not require self-insureds to comply with the separate and distinct Uninsured Motorist Act.*fn5 Because we are constrained to follow

[ 300 Pa. Super. Page 11]

    our Supreme Court's interpretation in Johnson, and because the No-fault Act, when read together with Uninsured Motorist Act does not provide protection for appellant, the lower court properly sustained the preliminary objections and dismissed the complaint.

Order affirmed.


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