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DAVID BINDERNAGEL v. NATIONWIDE MUTUAL AUTOMOBILE INSURANCE COMPANY (10/05/84)

filed: October 5, 1984.

DAVID BINDERNAGEL, APPELLANT,
v.
NATIONWIDE MUTUAL AUTOMOBILE INSURANCE COMPANY, INC., A CORPORATION



No. 00498 PITTSBURGH, 1982, Appeal from an Order in the Court of Common Pleas, Civil Division, of Allegheny County, No. GD82-02015.

COUNSEL

Karl W. Wiedt, III, Pittsburgh, for appellant.

Timothy D. Appelbe, Pittsburgh, for appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Hester

[ 335 Pa. Super. Page 420]

OPINION

On January 27, 1982, appellant, David Bindernagel, filed a Complaint in Assumpsit against appellee, Nationwide Mutual Automobile Insurance Company, Inc., in the Court of Common Pleas of Allegheny County. Said suit was instituted to recover damages for injuries appellant allegedly sustained while operating his Suzuki trail bike on State Route 837 in Clairton, Pennsylvania.*fn1 Appellant collided with a motor vehicle operated by Mary Toth.

Appellee provided automobile insurance for Janet Ober and James Ober of Washington County, Pennsylvania. Mrs. Ober was appellant's mother, and he resided with her and Mr. Ober at the time of the accident, February 9, 1980. As a resident/relative of their household, appellant claims that he was insured under the no-fault automobile insurance policy issued by appellee.

Appellee filed preliminary objections in the nature of a demurrer to appellant's complaint. Appellee contended that

[ 335 Pa. Super. Page 421]

    the Pennsylvania No-Fault Motor Vehicle Insurance Act*fn2 does not provide benefits for those injured while operating motorcycles. Inasmuch as appellee equated "trail bikes" to "motorcycles", it declined payment of no-fault benefits. The lower court agreed, granting the demurrer and dismissing appellant's complaint by order dated April 29, 1982. This timely appeal followed.

"Basic loss benefits," as defined in the No-fault Act,*fn3 are payable to persons who incur loss pursuant to injuries resulting from the "maintenance or use of a motor vehicle." They are not payable for losses "sustained by an operator or passenger of a motorcycle." 40 P.S. § 1009.103.

The Pennsylvania "Vehicle Code" defines a motor vehicle as a "vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails." 75 Pa.C.S.A. § 102. A motorcycle is defined as a "motor vehicle having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground." Id. Appellant argues that "trail bikes" are not "motorcycles." As a result, he maintains that injuries sustained by the operator of a trail bike do not belong to that category of losses incurred in the operation of a motorcycle for ...


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