No. 1519 Philadelphia 1982, Appeal from the Order of the court of Common Pleas, Civil Division, Philadelphia County at No. 2100 December Term 1981.
Paul J. Duca, Philadelphia, for appellant.
David M. McCormick, Philadelphia, for appellee.
Wickersham, Rowley and Watkins, JJ.
[ 318 Pa. Super. Page 488]
This case comes to us after appellant John Distler's petition to compel the Pennsylvania Assigned Claims Plan to appoint an insurance company to handle his uninsured motorist claim was denied by the lower court.*fn1 On December 18, 1981, John Distler filed a petition to compel the assignment of an insurance company to his uninsured motorist claim. The Pennsylvania Assigned Claims Plan (hereinafter Assigned Claims Plan) filed preliminary objections arguing that they had been improperly served.
After the Assigned Claims Plan was properly served, the lower court denied Distler's petition to appoint an insurance company but granted Distler leave to file an amended petition setting forth facts which would require the Assigned Claims Plan to appoint an insurer. Distler filed an
[ 318 Pa. Super. Page 489]
amended petition. The amended petition was denied and this appeal followed.*fn2
The record in this case is not fully developed because the case has not been heard on its merits. The pleadings state that on June 12, 1981, John Distler was struck by a motorist as Distler was driving his motorcycle. The motorist and Distler were both uninsured. Distler alleges that he was seriously injured in the accident.
Distler requested the Assigned Claims Plan to appoint an insurance company to process his uninsured motorist claim. The Plan refused to assign an insurance company until the Pennsylvania Supreme Court acted on a petition for rehearing in Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981). Distler pointed out that a rehearing was denied in Tubner and argued that under Tubner he was entitled to uninsured motorist benefits.
We note that Distler began this litigation by filing a petition seeking the appointment of an insurance company to handle his claim for uninsured motorist benefits. The recent case of Jones v. State Automobile Insurance Association, 309 Pa. Super. 477, 455 A.2d 710 (1983) makes it clear that an action for no-fault benefits should not be commenced by a petition. In this case Distler is not seeking no-fault basic loss benefits but rather uninsured motorist benefits; nevertheless the principles set forth in Jones, id., are equally applicable here. Accordingly, Distler's claim was not properly presented. Jones, supra, also teaches us that beginning an action by petition is a waivable ...