Appeal from the Judgment Entered February 28, 1984 in the Court of Common Pleas of Philadelphia County, Civil, at No. 6840 April Term, 1983.
Kevin J. Sommar, Lansdale, for appellant.
Steven H. Kitty, Philadelphia, for appellee.
Montemuro, Roberts and Bloom,*fn* JJ.
[ 343 Pa. Super. Page 312]
This is an appeal from the entry of summary judgment, on February 28, 1984, in favor of appellee, Susan Grant. Appellee is an uninsured motorist claiming basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act ["Act"].*fn1 The sole issue presented by the instant appeal, and one which we perceive to be of first impression, is: Whether the value of Health Maintenance Organization ["HMO"] entitlements, which have in fact been denied due to a claimant's failure to act in accordance with the requirements of his/her HMO plan, may be subtracted from "loss" in calculating the basic loss benefits to be paid by an assigned claims plan assignee.
As noted in the opinion of the court below, filed on July 31, 1984, the respective parties agree that the material facts of this matter are not in dispute. Those facts are set forth therein as follows:
On November 10, 1982, Plaintiff [appellee] Susan Grant was involved in a motor vehicle accident. There being no applicable security covering the vehicles involved in the accident, Plaintiff made application to the Pennsylvania Assigned Claims Plan for basic loss benefits on November 11, 1982. Defendant [appellant], Travelers Insurance Company . . . was assigned to service the claim.
In its answer to Defendant's new matter, Plaintiff admitted to being a beneficiary under a Health Maintenance Organization (HMO Pa) insurance plan. However, HMO Pa denied coverage on Plaintiff's claim for her failure to satisfy various requirements of that organization.*fn2 On
[ 343 Pa. Super. Page 313]
November 23, 1983, Defendant filed a motion for summary judgment alleging that it owed Plaintiff nothing after exercising its set-off rights pursuant to Section 108 of the Pennsylvania No-Fault Act. Plaintiff filed a cross motion for summary judgment November 29, 1983, asserting that Section 108 did not relieve Defendant of its obligation to compensate Plaintiff for sustained economic detriment.
On February 22, 1984, this Court granted Plaintiff's motion for summary judgment in the amount of $5,080.43 plus interest and denied ...