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PAUL HENRY MYERS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND DANNY C. WATERS INSURANCE AGENCY (12/20/85)

filed: December 20, 1985.

PAUL HENRY MYERS, AN INCOMPETENT, BY EDNA MARGARET MYERS, THE GUARDIAN OF THE ESTATE AND PERSON OF PAUL HENRY MYERS, APPELLANT,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY AND DANNY C. WATERS INSURANCE AGENCY, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Mercer County, No. 725 C.D., 1982.

COUNSEL

George H. Rowley, Greenville, for appellees.

Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Cirillo, Olszewski, Beck and Tamilia, JJ.

Author: Wieand

[ 348 Pa. Super. Page 540]

The issue in this appeal is whether a motorized pedalcycle, popularly known as a "moped", is a motorcycle for purposes of determining coverage under the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1 We hold that a motorized pedalcycle, which must be licensed under the Motor Vehicle Code, is a motorcycle. Therefore, an operator of a moped is not entitled to recover benefits under the No-fault Act.

While operating a 1979 Sachs Moped, a motorized pedalcycle, in the Borough of Greenville, Mercer County, on July 28, 1981, Paul Henry Myers was struck and seriously injured by an automobile. Because of the injuries sustained by Myers, he was rendered incompetent. Consequently, his wife, Edna Margaret Myers, was appointed guardian of his estate. She commenced an action in assumpsit against State Farm Mutual Automobile Insurance Company,*fn2 which had issued two policies of automobile insurance to the Myers. The first policy had been issued for the moped; it

[ 348 Pa. Super. Page 541]

    did not provide coverage for basic loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act. The second policy had been issued to provide coverage for a 1977 Buick owned by Mr. and Mrs. Myers; it did provide for payment of no-fault benefits. The insurance company filed preliminary objections in the nature of a demurrer on grounds that Myers had been injured while riding a motorcycle. The trial court agreed, dismissed the complaint, and entered judgment in favor of the insurer. Mrs. Myers appealed.

In Pistorius v. Travelers Insurance Co., 348 Pa. Super. 527, 502 A.2d 670 (1985), this Court said:

"Basic loss benefits," as defined by the No-fault Act, are payable to persons who incur loss due to injuries arising out of an accident involving the "maintenance or use of a motor vehicle." No-fault Act, supra, § 103, 40 P.S. § 1009.103. However, the Act specifically excludes recovery by victims whose loss has been sustained while operating or riding on a motorcycle. With respect to operators of motorcycles, the Act retains a system of tort liability for injuries which have been sustained. No-fault Act, supra, § 301(a)(6), 40 P.S. § 1009.301(a)(6). The Act does not define the term motorcycle.

Id., 348 Pa. Superior Ct. at 530, 502 A.2d at 671. We held in Pistorius that to be an operator of a motorcycle, as envisioned by the exclusionary language of the No-fault Act, one had to be operating a motor vehicle. Because the dirt bike in Pistorius was a recreational vehicle, neither subject to licensing as a motor vehicle nor intended for use on the public highways, we held that it was not a motor vehicle for purposes of the No-fault Act. Therefore, the dirt bike was not a motorcycle within the motorcycle exclusion of the Act.

Although the vehicle at issue in the instant case was a motorized pedalcycle instead of a dirt bike, we must nevertheless engage in the same inquiry undertaken in Pistorius to determine whether this particular transportation device was a motor vehicle for purposes of the ...


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