No. 406 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of Venango County, Civil Division, at No. 434 of 1978.
Howard William White, Jr., Franklin, for appellant.
F. Bloom, III, Oil City, for appellee.
Cercone, President Judge, and Hester, Brosky, Rowley, McEwen, Johnson and Popovich, JJ. Cercone, President Judge, concurs in the result. Hester, J., files a dissenting opinion.
[ 309 Pa. Super. Page 479]
This case presents for our determination issues not presented to, or decided by, this Court in Floczak v. Nationwide Mutual Insurance Co., 289 Pa. Super. 438, 433 A.2d 885 (1981).
Pauline J. Jones, appellant, sustained injuries in an automobile accident on October 27, 1977. Appellee, State Automobile Insurance Association, appellant's no-fault insurer, commenced the payment of "work loss" benefits to appellant under the provisions of her policy. However, appellee terminated payment of "work loss" benefits on August 8, 1978, following a physical examination of appellant. In November of 1978, appellant initiated these proceedings by filing, in the trial court, a petition asking that appellee be required to resume payments for work loss benefits, and in addition, that it be required to pay interest on the amount determined to be due and also to pay her attorney's fees. A rule was issued by the trial court on appellee to show cause why the petition should not be granted. Depositions were taken by the parties and the case was submitted to the trial court on the petition, rule, answer, and depositions, following oral argument. On April 9, 1980, the trial court filed an opinion and order in which the appellant's petition was "dismissed". This appeal was filed from the court's order dismissing appellant's petition.
Appellant initially presented as issues for this Court's determination, the appropriate allocation of the burden of proof in this proceeding, as well as the sufficiency of the
[ 309 Pa. Super. Page 480]
evidence to support the trial court's denial of relief. Following argument before a panel of this Court, but prior to a decision having been filed, another panel of this Court filed the decision in Floczak, supra., on July 24, 1981.
In Floczak, our Court held that a claim for basic work loss benefits under the Pennsylvania No-Fault Insurance Act may not be commenced by petition and rule. That decision was based on the language of § 106 of the No-Fault Act, which provides for commencement of "an action" to recover benefits. The Court stated that although the term "action" is not defined in the No-Fault Act, it is defined in the Statutory Construction Act as "any suit or proceeding in any court of this Commonwealth". 1 Pa.C.S.A. § 1991. The Court concluded that an "action" must be commenced as provided by the Rules of Civil Procedure, unless otherwise expressly provided by statute. Neither the rules of civil procedure nor the No-Fault Act authorize commencement of an action by petition. Therefore, in accordance with Rule 1007, an action for no-fault benefits may only be commenced by filing 1) a praecipe for a writ of summons, 2) a complaint, or 3) an agreement for an amicable action. This Court then reversed the trial court's order that had denied the defendant's preliminary objection in the nature of a motion to strike the petition and rule by which the plaintiff had commenced her action.
After the decision in Floczak, our Court granted reargument in this case before the court en banc and directed counsel to address two additional questions. The first question to be addressed is whether the commencement of this no-fault action by petition and rule is a waivable defect. The second question that counsel were directed to address is whether appellant was required to file exceptions to the trial court's decision in order to preserve issues for appellate review and, if so, the effect of her failure to do so in this case.
We have concluded that the commencement of an action under the No-Fault Act by petition and rule is a waivable procedural defect and ...