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NANCY SCHWEITZER v. AETNA LIFE AND CASUALTY COMPANY (10/08/82)

filed: October 8, 1982.

NANCY SCHWEITZER, APPELLANT,
v.
AETNA LIFE AND CASUALTY COMPANY, APPELLEE



Nos. 96 & 97 Harrisburg, 1981, Appeal from Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 1760 S 1980

COUNSEL

Bernadette Barattini, Harrisburg, for appellant.

Robert Burke McLemore, Harrisburg, for appellee.

Brosky, Wieand and Montemuro, JJ.

Author: Wieand

[ 306 Pa. Super. Page 301]

Is a motor vehicle occupant who has been pulled from her vehicle and assaulted entitled to receive benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act?*fn1 The trial court held that damages caused by the assault could not

[ 306 Pa. Super. Page 302]

    be recovered and entered summary judgment in favor of Aetna Life and Casualty Company, the no-fault insurance carrier. We affirm.

The facts are not in dispute. On July 13, 1979, Nancy Schweitzer, accompanied by her two children, was operating an automobile in Susquehanna Township. As she drew to a stop at the intersection of Edgemont and Herr Streets, a motorcycle operated by James Joseph Kostelec, Jr. stopped beside her vehicle. Kostelec shouted obscenities at Schweitzer; and, when Schweitzer pulled away from the intersection, he followed on his motorcycle at a dangerously close distance. On several occasions, in fact, the motorcycle ran into and struck the rear bumper of Schweitzer's vehicle. Schweitzer attempted to elude Kostelec, but her efforts were unsuccessful. Eventually, Kostelec ditched his motorcycle and approached the Schweitzer vehicle on foot. He pulled open the car door, grabbed Schweitzer and pulled her from the vehicle, pushed her back inside the car and beat her with his fist, all while continuing to shout obscenities.*fn2 Schweitzer was treated at the Emergency Room of Harrisburg's Polyclinic Hospital for bruises and a sprained wrist. She also suffered psychological difficulties as a result of the incident. All were sustained as a result of the assault. None were attributable to the earlier bumping of the vehicle by the motorcycle. After Aetna had denied a request for no-fault benefits, Schweitzer instituted this action in assumpsit. She appealed from the judgment entered in favor of Aetna.

Section 201 of the No-fault Act, 40 P.S. § 1009.201, provides in part: "If the accident resulting in injury occurs in this Commonwealth, any victim . . . is entitled to receive basic loss benefits in accordance with the provisions of this act." "Victim" is defined in Section 103 of the Act as "an individual who suffers injury arising out of the maintenance or use of a motor vehicle . . . ." See: 40 P.S. § 1009.103.

[ 306 Pa. Super. Page 303]

The No-fault Act further provides, with limited exceptions not here relevant, that "'[m]aintenance or use of a motor vehicle' means maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into or alighting from it." Id.

Appellant contends that her injuries, even though intentionally inflicted by a third party, arose from the use or maintenance of a motor vehicle as a motor vehicle and that she was, therefore, a "victim" within the ...


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