No. 460 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action, Law Division, of Beaver County, at No. 2269 of 1980.
Robert J. Campbell, Beaver Falls, for appellant.
Daniel R. Gigler, Pittsburgh, for appellee.
Hester, Beck and Van der Voort, JJ.
[ 305 Pa. Super. Page 168]
Presently before the court is the appeal of William H. Crawford (hereinafter called Crawford) from the order of
[ 305 Pa. Super. Page 169]
the lower court dated April 10, 1981, wherein appellee Allstate Insurance Company's (hereinafter called Allstate) preliminary objection in the nature of demurrer to Crawford's complaint and first amended complaint was sustained and Crawford's complaint and first amended complaint dismissed with prejudice.
On December 4, 1980, Crawford filed an action in assumpsit against Allstate to recover no-fault benefits allegedly due pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, 40 P.S. Section 1009.101 et seq. On January 15, 1981, Allstate filed its demurrer alleging that Crawford failed to state a cause of action upon which relief could be granted under the No-Fault Act. On January 23, 1981, Crawford filed a first amended complaint. Argument on Allstate's demurrer was heard by the lower court on March 13, 1981 and by order dated April 10, 1981, the lower court sustained Allstate's demurrer and dismissed with prejudice Crawford's complaint and first amended complaint. It is from this April 10, 1981 order that the instant appeal has been brought.
The rather unique set of operative facts herein involved may briefly be summarized as follows: Allstate issued to Crawford an insurance policy which provided security to Crawford in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. That policy (No. 0-28-223892) was in effect on June 20, 1979. At approximately 2:30 P.M. on that date, Crawford, while walking along railroad tracks near the Beaver River in Beaver County, Pennsylvania, was struck from the rear by a 1978 Chevrolet utility pick-up truck bearing Ohio license plate No. 5J615. The unusual aspect of this case is that at the time the Chevrolet pick-up truck struck Crawford, same was operating on railroad tracks, having been equipped with a special device which enabled it to so operate. Crawford alleges, however, that both prior and subsequent to the June 20, 1979 accident, the 1978 Chevrolet utility pick-up truck which struck him "was operated upon public highways as well as
[ 305 Pa. Super. Page 170]
upon railroad tracks." (Appellant's first ...