No. 418 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Dauphin County at No. 3388 S. 1981.
Lee C. Swartz, Harrisburg, for appellant.
Jeffrey E. Piccola, Harrisburg, for appellee.
Wickersham, Olszewski and Hoffman, JJ.
[ 331 Pa. Super. Page 206]
This is an appeal from the order of the Court of Common Pleas of Dauphin County sustaining the Pennsylvania Assigned Claims Plan's preliminary objections and dismissing appellant's complaint.
On January 8, 1976, William R. Mumma suffered serious injuries in an accident while driving his employer's truck in the course of his employment. He died eight days later as a result of these injuries. At the time of the accident, the decedent did not have no-fault motor vehicle insurance. Appellant, Doris J. Mumma, as administratrix of her husband's estate, obtained survivor loss benefits and funeral expenses from the decedent's employer's no-fault insurance carrier. Appellant petitioned for Workmen's Compensation benefits, which were awarded to her by a referee. The award was affirmed by the Workmen's Compensation Appeal Board; however, the matter was further appealed to the Commonwealth Court, where it was pending disposition at the time the instant appeal was filed.
On October 21, 1981, appellant filed the complaint in the instant action against appellee Assigned Claims Plan to recover work loss benefits not otherwise compensated by Workmen's Compensation. The Assigned Claims Plan filed preliminary objections in the nature of a demurrer on May 13, 1982. On October 27, 1982, the lower court sustained the preliminary objections and dismissed appellant's complaint.
[ 331 Pa. Super. Page 207]
The lower court en banc affirmed that order on December 10, 1982. This appeal timely followed.
Appellant presents two issues on appeal:
1. May an uninsured employee-victim or the estate of an uninsured employee-deceased victim recover no-fault basic loss benefits in excess of Workmen's Compensation payments from the Assigned Claims Plan under Section 204(a)(5) of the No-Fault Motor Vehicle Insurance Act if no other security is applicable?
2. Does the denial of the right of an uninsured employee-victim or the estate of an uninsured employee-deceased victim to recover no-fault basic loss benefits in excess of Workmen's Compensation payments from the Assigned Claims Plan under Section 204(a)(5) of the No-Fault Motor ...