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PAUL C. COOKE v. TRAVELERS INSURANCE CO. AND FIREMAN'S INSURANCE CO. NEWARK (02/13/86)

filed: February 13, 1986.

PAUL C. COOKE, JR., APPELLANT,
v.
TRAVELERS INSURANCE CO. AND FIREMAN'S INSURANCE CO. OF NEWARK, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 1753 Civil, 1983.

COUNSEL

James V. Fareri, Stroudsburg, for appellant.

Edward H. McGee, Allentown, for appellees.

Wieand, Cercone and Roberts, JJ. Cercone, J., did not participate in the decision of this appeal.

Author: Wieand

[ 350 Pa. Super. Page 469]

The sole issue in this appeal is whether the trial court erred when it held as a matter of law that no-fault work loss benefits could not be recovered by a claimant who sustained injuries when he fell while descending from a tank truck which he had mounted for the purpose of priming a pump thereon. We conclude that the court's ruling must be reversed.

An action in assumpsit was instituted by Paul C. Cooke, Jr., the appellant, for the purpose of recovering work loss benefits from Fireman's Insurance Company of Newark (Fireman's), the appellee,*fn1 which had written the insurance on the truck. After all of the evidence had been presented to a jury, the trial court granted a motion for directed verdict in favor of Fireman's on the grounds that Cooke had not been a "victim" of an accident within the terms of the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn2 Post-trial motions were denied, and judgment was entered in favor of Fireman's. Cooke appealed.

Paul C. Cooke, Jr., was employed as a laborer by the Nyleve Company at a construction project in Yardley, Pennsylvania. On September 11, 1981, he was using a power saw to cut concrete on a bridge which spanned the Delaware River. The blade of the saw was cooled by water funnelled from a water tank situated on a flatbed truck.*fn3 When Cooke found himself in need of water, he drove the truck across the bridge into New Jersey, intending to get water from the Raritan Channel. Although the tank was

[ 350 Pa. Super. Page 470]

    equipped with a self-priming pump, on this occasion the pump's self-priming mechanism did not work properly. Therefore, in order to prime the pump, Cooke climbed onto the water tank and poured water into a hose attached to the tank. He testified that he "got the thing running all right . . . and I went to get down, and this is when I slipped . . . when I slipped, I was standing on a pipe, off the bed of the truck . . . I fell, and I hit my chest on the chest bone on this pipe, and from there, I continued to fall down, and hit the bed of the truck, or the side of the truck . . . ." (Record, p. 21a).

The No-fault Motor Vehicle Insurance Act, at section 201(b), 40 P.S. ยง 1009.201(b), provides as follows:

If the accident resulting in injury occurs outside of this Commonwealth, a victim . . . is entitled to receive basic loss ...


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