Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of Harry Gubernick and Jane Gubernick v. City of Philadelphia, No. 6098 March Term, 1980.
Barbara R. Axelrod, Assistant City Solicitor, with her, Mark A. Aronchick, City Solicitor, Gabriel L. I. Bevilacqua, Chairperson of Litigation, Sarah C. Makin, Assistant City Solicitor, and Jeffrey Batoff, for appellant.
Frank M. Jakobowski, for appellee.
President Judge Crumlish, Jr. and Judges MacPhail and Colins, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.
[ 85 Pa. Commw. Page 398]
The City of Philadelphia appeals a Philadelphia County Common Pleas Court order granting in part the petition of Harry and Jane Gubernick for no-fault benefits. We vacate and remand.
The Gubernicks were attempting to cross a street near their home in Philadelphia when they were struck by an unmarked Philadelphia police car, resulting in personal injuries requiring extensive medical treatment.
The Gubernicks maintained their own health insurance coverage through which they were reimbursed for medical expenses.*fn1 They filed a petition in Philadelphia County Common Pleas Court for no-fault benefits, attorney fees, interest and costs pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act)*fn2 which allowed recovery of medical expenses from an obligated municipality when the
[ 85 Pa. Commw. Page 399]
insured maintains a collateral source of benefits. The common pleas court partially granted the Gubernicks' petition. This appeal by the City of Philadelphia followed.
On appeal, the City contends that the Political Subdivision Tort Claims Act,*fn3 controls this action to the exclusion of the No-fault Act.*fn4 The Tort Claims Act, enacted by the Commonwealth in 1978, re-established sovereign immunity generally in the Commonwealth but admitted specific exceptions to its application -- in particular, vehicle liability. Contrary to the No-fault Act, the Political Subdivisions Tort Claims Act limits recovery where a collateral source of benefits exists, requiring that a claimant's insurance benefits be deducted from the damages to which he would otherwise be entitled.*fn5
A review of the record reveals that the City of Philadelphia did not, in its argument before the court below, address the issue of whether the Political Subdivision Tort Claims Act controls in this case. ...