Appeal from the Order of the Court of Common Pleas, Civil Division of Philadelphia County at No. 439 March Term 1985.
Benjamin Kuby, Philadelphia, for appellants.
James K. Brengle, Philadelphia, for appellee.
Wickersham, Brosky and Tamilia, JJ.
[ 346 Pa. Super. Page 369]
Michael and Sandra Riccio appeal from the order of the Court of Common Pleas of Philadelphia County granting appellee insurance company's preliminary objections.
As a result of a one-car accident that occurred on June 29, 1984, Michael Riccio sustained serious injuries that rendered him a permanent quadriplegic. After the accident, Riccio was taken to Nazareth Hospital and within hours he was transferred to Thomas Jefferson Hospital in Philadelphia, the regional spinal cord injury center. He remained in Jefferson Hospital until November 29, 1984, when he was transferred to Magee Rehabilitation Hospital, where he was still confined at the time this appeal was filed. Mr. Riccio has been informed, however, that the present stage of his rehabilitation is nearing completion and that he must be transferred to a nursing home or to a wheel chair-accessible private residence.
At the time of the accident, Riccio was a passenger in a vehicle owned and operated by Scott L. Surbrook. The Surbrook vehicle was insured under a policy issued by appellee Northwestern National Insurance Company of Milwaukee, Wisconsin. In applying for insurance with Northwestern,
[ 346 Pa. Super. Page 370]
Mr. Surbrook had chosen a no-fault option plan which provided that the primary source of recovery for benefits, which would otherwise be covered by the no-fault carrier, would be from Blue Cross/Blue Shield.
At the time of the accident neither Michael nor Sandra Riccio owned a motor vehicle or resided in a household in which there was a motor vehicle. Michael Riccio was not and is not covered by Mr. Surbrook's Blue Cross/Blue Shield insurance coverage; neither was Mr. Riccio enrolled in a health insurance program at his place of employment. Mr. Riccio is, however, included as an insured under an HMO PA/NJ plan in which Sandra Riccio is enrolled at her place of employment.
While Northwestern National has paid and presumably continues to pay wage loss benefits to Mr. Riccio, it has steadfastly refused to make payments for Mr. Riccio's medical, hospital, and rehabilitation costs, claiming that under its policy with Surbrook, it was only responsible for excess medical expense not paid by a primary health care provider. The HMO plan has paid Mr. Riccio's medical expenses to the present time; however, it has advised Mr. Riccio and the authorities at Magee that, under its contract, it will not pay for any equipment or care facilities following his discharge from Magee.
On March 5, 1985, appellants filed a Praecipe for Summons which was served on appellee Northwestern National on March 12, 1985. Meanwhile, on March 11, 1985, appellants filed a Petition for Rule to Show Cause why no-fault benefits should not be paid by appellee. Appellee filed preliminary objections to the petition alleging that the petition failed to state a cause of action upon which relief could be granted under sections 404 and 405 of the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1 More specifically, appellee objected to the use of a petition and rule to obtain no-fault benefits under sections 404 and 405. Appellee's
[ 346 Pa. Super. Page 371]
preliminary objections also averred that the items of expense requested in the petition were not recoverable under those sections of the No-fault Act. After argument, the trial court sustained appellee's ...