Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 84-12372.
Ralph D. Friedman, Abington, for appellant.
David W. Moneymaker, Wayne, for appellees.
Wickersham, Wieand and Popovich, JJ. Wieand, J., concurs in the result.
[ 353 Pa. Super. Page 528]
Arthur E. McMullin appeals from the order of the Court of Common Pleas of Montgomery County sustaining appellee Aetna's amended preliminary objections and dismissing Count II of appellant's complaint and transferring venue for Count I of the complaint from Montgomery County to Berks County.
Shortly before midnight on August 20, 1982, appellant McMullin was walking along Pennsylvania Route 61 in Leesport, Berks County, when he was struck by two motor vehicles. Appellee Frank J. Dallago, III was the operator of one of the vehicles involved. His father, Frank J. Dallago, II, was the owner of the car, and was the named
[ 353 Pa. Super. Page 529]
insured in an automobile insurance policy issued by appellee Aetna Life & Casualty Company ("Aetna"). The other motorist who struck appellant fled the scene of the accident and remains unknown. There is no dispute that appellant was uninsured at the time of the accident.
On August 10, 1984, appellant filed a two-count complaint against appellees. In Count I, appellant sought to recover damages in tort from the Dallagos. In Count II, appellant sought uninsured motorist benefits from Aetna, on the basis that he was an uninsured pedestrian, that the Dallagos' policy with Aetna included uninsured motorist coverage, and that since one of the cars that struck him was unidentified, he was entitled to uninsured motorist benefits from Aetna. Aetna filed preliminary objections to Count II, stating that, absent a contract between Aetna and appellant, Aetna was under no obligation to compensate appellant for damages allegedly inflicted by the unidentified vehicle. Aetna also objected to venue in Montgomery County. On June 27, 1985, the lower court granted Aetna's amended preliminary objection in the nature of a demurrer, striking Count II of the complaint. Aetna's objection concerning venue was also sustained and the remainder of the case, i.e., Count I, was transferred to Berks County. It is to this order that appellant filed this timely appeal.
Appellant raises two issues before us:
Did the lower court err in failing to find that an insurer providing basic los[s] benefits under the No-fault Act to an uninsured pedestrian struck by a hit and run vehicle must also provide uninsured motorist coverage for said victim?
Did the lower Court err in issuing an order changing venue pursuant to Pennsylvania Rule of Civil Procedure § 1006(c) which provides that in a case of joint and several liability, the action can be brought in any county in which one of the Defendants can be served?
Brief for Appellant at 4.
The primary issue raised -- whether the lower court erred in holding that appellant was ...