Appeal from the Order in the Court of Common Pleas of Montgomery County, Civil No. 82-04766.
Francine D. Wilensky, Philadelphia, for appellant.
Charles W. Craven, Philadelphia, for appellee.
Spaeth, President Judge, Johnson and Shoyer,*fn* JJ.
[ 342 Pa. Super. Page 552]
This is an appeal from an order granting summary judgment. Appellant argues that the trial court erred in finding his action in tort barred by the No-Fault Act, 40 Pa.S. § 1009.301(a).*fn1 We agree and accordingly reverse and remand for trial.
On July 30, 1981, at 8:15 a.m., appellant, a delivery man for a soft drink company, drove his truck into appellee's parking lot to make a delivery. He parked at appellee's loading dock, got out of the cab of the truck and went to the rear of the truck to unload it. To unload, he had to step up onto the truck. As he stepped down with some cases of soda in his hands, he put his right foot into a hole or crack, fell, and was hurt. R. at 1, para. 5-8. This action arises on appellant's complaint in trespass alleging that appellee's negligence caused his injury. Id. at para. 12. Appellee filed a Motion for Summary Judgment, arguing that appellant's recovery in tort is barred by the No-Fault Act, 40 P.S. § 1009.301(a), in that his injury occurred while he was
[ 342 Pa. Super. Page 553]
"alighting from . . . his vehicle . . . ." R. at 9, para. 5. The trial court accepted this argument and granted the motion.
Section 201(a) of the No-Fault Act, 40 Pa.S. § 1009.201(a), provides in part:
If the accident resulting in injury occurs in this Commonwealth, any victim or any survivor of a deceased victim is entitled to receive basic loss benefits in accordance with the provision of this act.
Section 301(a) of the Act, 40 Pa.S. § 1009.301(a), provides in part:
Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the ...