Appeal from the Judgment of the Court of Common Pleas, Montgomery County, Civil Division, at No. 82-13984.
John V. Hasson, Ambler, for appellant.
William B. Brooks, Norristown, for appellee.
Brosky, Watkins and Hoffman, JJ.
[ 346 Pa. Super. Page 43]
This case is before us on judgment entered in favor of the defendant, Ohio Casualty Insurance Company, pursuant to the latter's motion for summary judgment. The sole issue for our determination is whether appellant's minor child, who injured himself when he cut his leg on an automobile parked in a school parking lot, was a "victim" within the meaning of the Pennsylvania No-fault Motor Vehicle Insurance
[ 346 Pa. Super. Page 44]
Act, 40 P.S. § 1009.101, et seq. We find no merit to appellant's argument, and we therefore affirm.
On June 8, 1981, Roderick Schenk, the eight year old son of appellant, Virginia M. Schenk, was sent by an Enfield Elementary School teacher to the front of the school to make a sketch as part of an art project. While walking to the front of the school, the child passed between some bushes and a 1979 Mercedes automobile (which was legally parked in the school parking lot) and scraped his left leg on the automobile's vanity plate, severely lacerating his leg.
Appellant filed a claim with appellee, the insurer of appellant's own automobile, requesting reimbursement of her son's medical expenses in accordance with the provisions of the No-fault Act. Appellee denied the claim, and appellant filed a complaint in assumpsit. The parties stipulated to the material facts of the case, and both parties filed motions for summary judgment. The trial court denied appellant's petition, and granted appellee's petition.
Section 201 of the Act provides that a "victim" is entitled to receive "basic loss benefits" in accordance with the terms of the Act for injuries resulting from accidents occurring in Pennsylvania. "Victim" is defined by section 103 of the Act as "an individual who suffers injury arising out of the maintenance or use of a motor vehicle . . . ." "Maintenance or use of a motor vehicle" is defined by this same section to mean "maintenance or use of a motor vehicle as a vehicle, including, incident to its maintenance or use as a vehicle, occupying, entering into, or alighting from it." It is clear that appellant will be entitled to recover if we are able to find that the accident arose out of the maintenance or use of a motor vehicle. This we are unable to do, however.
Appellant argues that the accident arose out of the use of a motor vehicle in that the owner of the automobile used the car to get to her place of employment, the Enfield Elementary School, on the morning of the accident. The flaw in this argument is that the automobile was not ...