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filed: October 7, 1983.


No. 639 PHILADELPHIA, 1981, Appeal from an Order of the Court of Common Pleas, Civil Division, of Schuylkill County, No. S-1563-1978.


Stephen P. Ellwood, Pottsville, for appellant.

David B. Glancey, Philadelphia, for appellee.

Hester, Wickersham and Popovich, JJ. Wickersham and Popovich, JJ., filed concurring opinions.

Author: Hester

[ 321 Pa. Super. Page 85]

This is an appeal from an Order dated March 3, 1981, dismissing a complaint in assumpsit for no-fault benefits provided under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act (hereinafter the "No-Fault Act") and the Pennsylvania Assigned Claims Plan. Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. Appellee's request for a summary judgment was granted on the grounds that the complaint was filed beyond the two-year statute of limitations provided in the No-Fault Act.

Appellant, Mark Zubris, was injured on January 13, 1976, while a passenger in an automobile operated by Michael Wallace. Mr. Wallace's vehicle was struck by another vehicle operated by Edward Stoudt. Two weeks following the accident, appellant retained counsel for the purpose of recovering compensation for his injuries.

Appellant and his attorney were advised by Mr. Wallace that his motor vehicle was covered by insurance purchased by his father from The Pflueger Agency in Schuylkill Haven, Pennsylvania. It was not until March, 1978 that appellant learned that Wallace's insurance policy covered collision only; it did not cover the liability or basic loss benefits required under the No-Fault Act.

A notice of loss was filed with appellee, the Pennsylvania Assigned Claims Plan, on August 7, 1978. This notice of loss was followed by a notice of claim filed with appellee on August 18, 1978. When the claim was rejected, appellant filed an assumpsit complaint against appellee on September

[ 321 Pa. Super. Page 8626]

, 1978. Appellee responded with an answer and new matter containing an allegation that the complaint was untimely filed under the No-Fault Act.

Section 1009.106(c)(1) of the No-Fault Act sets forth the applicable limitations period for instituting this type of action:

"If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than the survivor's benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits. 40 P.S. § 1009.106(c)(1).

The limitations period, at the earliest, starts to run on the date the claimant suffers a "loss". Section 1009.103 defines loss as an "accrued economic detriment resulting from injury arising out of the maintenance or use of a motor vehicle consisting of, and limited to, allowable expense, work loss, replacement services loss, and survivor's loss." Appellant avers that the "loss" was not sustained until March, 1978, when he learned that The Pfueger Agency did not provide the mandatory no-fault coverage for Mr. Wallace. Conversely, appellee maintains that loss was sustained on January 13, 1976, the date of the accident.

The primary issue presented here is whether the "loss" occurred on the accident date (January 13, 1976), on the date of actual knowledge of no no-fault coverage for Mr. Wallace (March, 1978), or some other date falling between those advanced by the parties. This issue can be resolved only after a refinement of the definition of "loss" and a determination of when "loss" occurred here.

In refining the definition of "loss", a review of recent decisions on limitations of actions under the No-Fault Act is

[ 321 Pa. Super. Page 87]

    in order. In Donnelly v. DeBourke, 280 Pa. Super. 486, 421 A.2d 826 (1980), the plaintiff was injured while riding as a passenger in a vehicle struck from behind. A complaint in trespass for damages in excess of the threshold amounts was not filed against the negligent motorist until two years and nine months had passed from the accident date. The defendant's preliminary objection on grounds that the statute of limitations was not complied with was sustained and the action dismissed. In affirming, this Court rejected the plaintiff's argument that the limitations period cannot begin to run before the threshold requirements are met. The Donnelly court held, in accordance with its view of tradition, that the limitations period begins to run on the date the injuries were sustained even though the nature and extent of the injuries are not yet certain. The Donnelly court especially noted that the threshold limits do not preclude the filing of a tort cause of action; they merely limit the amount of recovery. Its concern for an unwieldly court calendar may have led the Donnelly court to its holding.

The Donnelly decision did not remain precedential for long. This same court in Bond v. Gallen, 292 Pa. Super. 207, 437 A.2d 7 (1981), under identical facts, overruled the Donnelly decision. In Bond, supra, the court viewed the No-Fault Act as a mechanism eliminating a cause of action and not merely limiting the amount of damages. In accordance with this premise, the Bond court held that the limitations period does not begin to run, and the cause of action does not accrue, until the claimant knows or should have known that one of the § 1009.301(a) thresholds had been reached. The Bond court recognized the discovery dangers of the threshold being reached only after many years; nevertheless, its fears were allayed when it also recognized the four-year statute of repose built into § 1009.106(c). No action may be filed beyond four years of the accident date irrespective of the threshold remaining unsatisfied.

In further interpretation of "loss", Myers v. U.S.A.A. Casualty Ins. Co., 298 Pa. Super. 366, 444 A.2d 1217 (1982),

[ 321 Pa. Super. Page 88]

    held that the date of accident does not necessarily begin the running of the statute of limitations under the No-Fault Act; rather, the limitations period begins to run when the cause of action accrues. Two of the three plaintiffs in Myers, supra, were passengers in a motor vehicle operated by the third plaintiff, Lynn Wagner Myers. Miss Myers' vehicle collided with another vehicle resulting in serious physical injury to the three plaintiffs. The defendant was the insurer of the vehicle operated by Miss Myers. When the defendant insurer refused to honor a claim for medical bills, lost wages, impairment of earning capacity and loss of ability to work, the plaintiffs filed a complaint in assumpsit and trespass against the defendant. The lower court agreed with the defendant insurer's preliminary objections and ordered the complaint dismissed with prejudice for failure to file within the statutory period of limitations.

In holding that the accident date there did not begin the running of the two-year statute of limitations, the Myers court reasoned that the creation of a four-year statute of repose unequivocally suggests that the two-year limitations period could begin its run somewhere between the accident date and the ultimate four-year limitation from the accident date. Under the particular facts presented in Myers, supra, the cause of action arose from the alleged breach of the defendant's contractual obligation to pay no-fault benefits; therefore, "loss" was construed to occur at the time of breach of contract. The underlying tort cause of action was immaterial.

We recognize that, unlike the instant matter, Bond, supra, and Myers, supra, involve complaints filed against parties other than an insurance carrier assigned the claim under the assigned claims plan; nevertheless, such a factual distinction is not determinative. Both decisions refused to consider the day of the accident for the purpose of commencing the limitations period; instead, they looked solely to the date when the cause of action accrued against the respective defendants.

[ 321 Pa. Super. Page 89]

Prior to discussing when "loss" occurred, we must note the special statute of limitations set forth in § 1009.106(c)(4). Section 1009.106(c)(4) provides:

Except as paragraph (1), (2), or (3) prescribes a longer period, an action by a claimant on an assigned claim which has been timely presented in accordance with the provisions of section 108(c) of this act may not be commenced more than sixty days after the claimant receives written notice of rejection of the claim by the restoration obligor to which it was assigned.

Section 1009.106(c)(4) incorporates, by reference, the following language set ...

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