APPEAL OF: SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY. Appeal from the Order of October 19, 1984 in the Court of Common Pleas of Philadelphia County, Civil, No. 2784 April Term, 1984.
Stephen S. Dittmann, Philadelphia, for appellant.
James M. Marsh, Philadelphia, for appellee.
Brosky, McEwen and Hester, JJ.
[ 355 Pa. Super. Page 510]
We here consider an appeal from an order in which preliminary objections in the nature of a demurrer filed by Allstate Insurance Company ("Allstate") were sustained and the complaint filed by appellant Southeastern Pennsylvania Transportation Authority ("SEPTA") was dismissed. SEPTA raises but one issue for our consideration on appeal, namely, whether, under Modesta v. SEPTA, 503 Pa. 437, 469 A.2d 1019 (1983), a self-insurer must provide uninsured motorist coverage to an insured passenger who has received basic loss benefits under a separate policy. We affirm.
The facts are not disputed and the distinguished Judge Ethan Allen Doty has in his able opinion provided an apt summary of the events which give rise to this appeal:
On December 20, 1982, plaintiff, Ethleen Brissett, sustained personal injuries when the SEPTA bus in which she was a passenger was involved in an accident with a
[ 355 Pa. Super. Page 511]
motor vehicle driven by an unidentified individual. At the time of this accident, plaintiff resided in the same household as her son, who was insured under a policy issued by additional defendant, Allstate. Consequently, plaintiff applied for and subsequently received basic loss benefits from Allstate, pursuant to the provisions of the Pennsylvania No-Fault Act.*fn1
On April 13, 1984, plaintiff instituted the present action against SEPTA, seeking recovery of uninsured motorist benefits. SEPTA filed a complaint joining Allstate as an additional defendant, claiming that it was responsible for the payment of any uninsured motorist benefits due to plaintiff. Allstate responded by filing preliminary objections in the nature of a demurrer seeking dismissal of SEPTA's Complaint. This motion was granted by Order of this Court dated October 19, 1984.
The standard of review to be applied to an order which sustains preliminary objections in the nature of a demurrer is well-settled:
All material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purposes of this review.] Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970). Where doubt exists as to whether a demurrer should be sustained ...