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HARRY GUBERNICK AND JANE GUBERNICK v. CITY PHILADELPHIA AND SEPTA. CITY PHILADELPHIA (10/02/84)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 2, 1984.

HARRY GUBERNICK AND JANE GUBERNICK
v.
CITY OF PHILADELPHIA AND SEPTA. CITY OF PHILADELPHIA, APPELLANT

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.

COUNSEL

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.

Author: Crumlish

[ 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. Ordinarily, questions not properly raised below will not be

[ 85 Pa. Commw. Page 400]

    considered by this Court on appeal. Muehleisen v. State Civil Service Commission, 66 Pa. Commonwealth Ct. 95, 443 A.2d 867 (1982), aff'd 501 Pa. 335, 461 A.2d 615 (1983). However, when an issue which the Court sees as paramount is not addressed by the parties, it will not decide the case sua sponte but will allow the parties an opportunity to address that issue. Harris v. Unemployment Compensation Board of Review, 66 Pa. Commonwealth Ct. 317, 444 A.2d 807 (1982). We therefore remand this case to the common pleas court for determination of which law controls and disposition of the Gubernicks' petition in accordance with that law.

Vacated and remanded.

Amending Order

The Philadelphia County Common Pleas Court order dated August 26, 1982, March Term, 1980, No. 6098, is vacated and this case is remanded to the common pleas court for further proceedings consistent with this Opinion.

Jurisdiction relinquished.

Disposition

Vacated and remanded.


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