Appeals from the Order entered on October 16, 1985 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 1426 Jan. Term. 1985. Appeal from the Order entered on February 5, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 260 Oct. 1985.
Francis X. Dochney, Philadelphia, for Gurley, appellant (at 3207 Philadelphia 1985).
Chad F. Kenney, Philadelphia, for Robinson, appellant (at 528 Philadelphia 1986).
A. Richard Feldman, Philadelphia, for appellees.
Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Olszewski, Beck, Tamilia and Johnson, JJ., en banc. Tamilia and Johnson, JJ., concur in the result.
[ 367 Pa. Super. Page 540]
These are two appeals that were resubmitted after initial argument for consideration by the Court en banc because they both raise the same important issue regarding the proper interpretation of Section 1009.108(a)(1)(E) of the now-repealed No-fault Motor Vehicle Insurance Act, Pa.Stat.Ann. tit. 40 §§ 1009.101-.701 (repealed effective October 1, 1984) (the "No-Fault Act").*fn1
We begin by reciting the pertinent facts and procedural history of each action.
Gurley v. City of Philadelphia et al. Nos. 3207 Phl. 1985 and 439 Phl. 1986
On June 22, 1984, appellant Leroy Gurley, while riding his bicycle, was struck by a motor vehicle owned by the City of Philadelphia and operated by Philadelphia police officers. Gurley was a pedestrian who did not have his own no-fault policy and who did not live in a household in which someone held such a policy. Therefore, under Section 204(a)(4) of the No-fault Act, the proper source of security for Gurley's basic loss benefits was the City as the owner of the vehicle involved in the accident. Gurley presented a claim for benefits to the City, and the City denied the claim on the ground that it is immune from suit under the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. §§ 8541-8564
[ 367 Pa. Super. Page 541]
(1982). Gurley then presented his claim to the Pennsylvania Assigned Claims Plan (the "Plan") pursuant to the No-fault Act. The Travelers Insurance Company ("Travelers"), the company designated by the Plan to service Gurley's claim, denied the claim on the ground that Gurley's sole remedy was to pursue his claim against the City. Gurley then filed a complaint against the City, the Plan and Travelers.
The Plan and Travelers filed preliminary objections claiming that Gurley was not entitled under the No-fault Act to basic loss benefits from the Plan because the City is the proper source of no-fault benefits. The trial court granted these preliminary objections, dismissed ...