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NORA BARWIS v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (04/21/86)

filed: April 21, 1986.

NORA BARWIS, APPELLANT,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLEE



Appeal from the Judgment entered on April 23, 1985, in the Court of Common Pleas of Bucks County, Civil Division, at No. 84-02533-11-1.

COUNSEL

Arthur G. Nassau, Philadelphia, for appellant.

David M. McCormick, Philadelphia, for appellee.

Wickersham, Beck and Hoffman, JJ.

Author: Beck

[ 352 Pa. Super. Page 605]

This is an appeal from the judgment entered granting the appellee's Motion for Summary Judgment. Appellant, Nora Barwis, contends that the lower court erred by concluding that she is not a "victim" of a motor vehicle accident within the meaning of the Pennsylvania No-Fault Motor Vehicle Insurance Act ("No-Fault Act"), Act of July 19, 1974, P.S. 489, No. 176, § 101 et seq., 40 P.S. § 1009.101 et seq., and as a result is not entitled to No-Fault benefits.*fn1

The facts in this case are not in dispute. Appellant was injured when, as she was getting out of her vehicle, her left leg slipped into a hole in the parking lot causing her to lose her balance and fall. Trial Court Opinion at 2. Appellant filed a Pennsylvania No-Fault Motor Vehicle Insurance Act Application for Benefits form with the appellee-insurance carrier in order to be compensated for her medical bills and wage loss. She submitted all medical bills and reports in accordance with the terms of her automobile insurance policy. After the appellee rejected appellant's claim, she sued the insurance carrier for basic loss benefits. The matter was tried before a panel of arbitrators which found for appellant. The appellee appealed the arbitrator's decision

[ 352 Pa. Super. Page 606]

    to the Court of Common Pleas of Bucks County, where it filed the Motion for Summary Judgment which led to this appeal.

To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. Lookenbill v. Garrett, 340 Pa. Super. 435, 490 A.2d 857 (1985) (citations omitted). We find, however, that the trial court's granting of appellee's motion for summary judgment is premised upon a misconstruction of the dictates of the No-Fault Act. Accordingly, we vacate and remand.

Section 201(a) of the No-Fault Act provides in part: If the accident resulting in injury occurs in this Commonwealth, any victim. . . is entitled to receive basic loss benefits . . . .

40 P.S. § 1009.201(a) (emphasis added). According to Section 103, a "victim" is "an individual who suffers injury arising out of the maintenance or use of a motor vehicle." 40 P.S. § 1009.103 (emphasis added). The statute further mandates that "maintenance or use of a motor vehicle" means the following:

[M]aintenance 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. Maintenance ...


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