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ESTATE JOHN VICTOR JORDAN v. COLONIAL PENN INSURANCE COMPANY AND PRUDENTIAL INSURANCE COMPANY AND PENNSYLVANIA ASSIGNED CLAIMS PLAN (TWO CASES). APPEAL PRUDENTIAL INSURANCE COMPANY. APPEAL COLONIAL PENN INSURANCE COMPANY (02/01/88)

filed: February 1, 1988.

THE ESTATE OF JOHN VICTOR JORDAN, BY HIS GUARDIAN BRENDA FOSTER AND NEW MEDICO ASSOCIATES, INC.
v.
COLONIAL PENN INSURANCE COMPANY AND PRUDENTIAL INSURANCE COMPANY AND PENNSYLVANIA ASSIGNED CLAIMS PLAN (TWO CASES). APPEAL OF PRUDENTIAL INSURANCE COMPANY. APPEAL OF COLONIAL PENN INSURANCE COMPANY



Appeal from the Order entered in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4978 OCTOBER TERM 1984.

COUNSEL

David M. McCormick, Philadelphia, for Prudential, appellant in No. 451 and appellee in No. 452.

James C. Haggerty, Philadelphia, for Colonial Penn, appellant in No. 452 and appellee in No. 451.

A. Richard Feldman, Philadelphia, Pa. Assigned Claims, appellee.

Cavanaugh, Tamilia and Hoffman, JJ.

Author: Tamilia

[ 370 Pa. Super. Page 557]

These are timely cross-appeals by defendants Colonial Penn Insurance Company ("Colonial"), and Prudential Insurance Company ("Prudential"), of a January 14, 1987 trial court Order entering summary judgment in favor of defendant Pennsylvania Assigned Claims Plan ("the Plan"). This action was commenced on October 24, 1984 by the plaintiff John Victor Jordan, an incompetent, by his sister and guardian Brenda Foster. The case arose from a motor vehicle accident that occurred on December 30, 1982. On that date, Harry Yellin, the owner operator of a vehicle insured by Prudential, struck Jordan on Interstate 95 in Philadelphia, Pennsylvania, causing serious bodily injuries which rendered Jordan an incompetent. Jordan has never been able to explain the events leading up to his unfortunate accident because of his permanent condition.

An automobile belonging to Mr. Jordan was subsequently found parked alongside the roadway approximately three-quarters of a mile south of the accident scene. Although no evidence has surfaced to explain Jordan's situation, the trial court conjectured that Jordan experienced mechanical difficulty, parked his automobile, and set off on foot to seek assistance when he was struck (Slip Op., Wallace, J., 5/19/87, p. 2).

By Order of June 11, 1985, the trial court permitted New Medico Associates, one of the medical providers to Jordan, to become an intervening plaintiff in the action. Plaintiffs' action seeks basic loss benefits pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act ("No-fault Act"),

[ 370 Pa. Super. Page 55840]

P.S. ยง 1009.101 et seq.*fn1 Plaintiffs seek recovery from Colonial based on a motor vehicle insurance policy it issued to Brenda Foster, with whom Jordan was living at the time of the accident. Plaintiffs seek alternative recovery from Prudential pursuant to its policy issued to Yellin, and as a last resort seeks basic loss benefits through the Plan. All three defendants filed an answer and new matter to Jordan's complaint and all three participated in extensive discovery. At the close of pleadings and discovery, cross-motions for summary judgment were filed by the defendants and subsequently denied. A court-approved settlement was then entered into by Colonial for basic loss benefits, interest, counsel fees and costs in the amount of $553,000 on December 19, 1986, without prejudice to Colonial's claims against the other defendants. Subsequently, after reconsideration, the trial court granted the Plan's motion for summary judgment on January 14, 1987, dismissing the Plan. It is from this Order that Colonial and Prudential bring these timely appeals.

Summary judgment may be entered only in the clearest of cases where the right to judgment is clear and free from doubt. Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986); Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Pa.R.C.P. 1035(b). As we stated in Morgan v. Johns-Manville Corporation, 354 Pa. Super. 58, 61, 511 A.2d 184, 186 (1986):

Summary judgment 'shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' Pa.R.Civ.P. 1035(b). When deciding whether to grant a motion for summary judgment, a court must draw all ...


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