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ROBBY GABRIEL ALVARINO A MINOR v. ALLSTATE INSURANCE COMPANY (02/03/88)

filed: February 3, 1988.

ROBBY GABRIEL ALVARINO A MINOR, BY HIS FATHER GABRIEL ALVARINO AND GABRIEL ALVARINO, APPELLANTS
v.
ALLSTATE INSURANCE COMPANY



Appeal from the Order entered on December 9, 1986, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 216 April Term 1986.

COUNSEL

Dennis L. Scanlon, Philadelphia, for appellants.

William H. Resch, Jr., Philadelphia, for appellee.

Cavanaugh, Beck and Hester, JJ.

Author: Beck

[ 370 Pa. Super. Page 564]

This is an appeal from a grant of judgment on the pleadings in favor of appellee defendant Allstate Insurance Company.

In reviewing a grant of judgment on the pleadings, we must determine if the action of the trial court was based on a clear error of law or whether the pleadings raise factual issues that should clearly be decided by the jury. Vogel v. Berkley, 354 Pa. Super. 291, 296, 511 A.2d 878, 880 (1986). In making this determination, we must confine ourselves to the pleadings and relevant documents attached thereto and accept as true all well pleaded statements of fact made by the party against whom judgment has been granted and consider against such party only those other facts that he specifically admits. Jones v. Travelers Insur. Co., 356 Pa. Super. 213, 217, 514 A.2d 576, 578 (1986). We do not consider pleaded conclusions of law nor do we draw unjustified inferences of fact. Id.

Under this standard, we find that the relevant facts for purposes of our review of the trial court's action are clear and are as follows. On September 14, 1985, appellant Robbie Alvarino and his father, appellant Gabriel Alvarino, were bicycling in their neighborhood when they came upon a neighbor who was driving his van through the neighborhood. The neighbor had a dog chained inside his van. The neighbor stopped his van to speak with the Alvarinos.

[ 370 Pa. Super. Page 565]

Robbie Alvarino then entered the van. The neighbor drove on with Robbie in the van and Gabriel following behind on his bicycle. The neighbor stopped the van shortly thereafter and Gabriel Alvarino caught up to the van and again stopped to speak to the neighbor. At that time, the dog bit Robbie Alvarino who was still in the van.

Gabriel Alvarino owned a policy of motor vehicle insurance issued by appellee Allstate Insurance Company. Appellant sought to collect first party benefits under that policy to cover medical expenses incurred by both himself and Robbie as a result of the dog bite.*fn1 Allstate refused the claim, contending that the policy did not afford coverage for expenses incurred because of the dog bite. Appellants then sued Allstate for the claimed benefits. Allstate answered the complaint and asserted New Matter, denying coverage, to which appellants filed a Reply. Allstate then filed a Motion for Judgment on the Pleadings which the trial court granted by Order dated December 9, 1986.

We are presented with only one issue in this appeal. That issue involves the proper construction of Sections 1711 and 1712 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. Cons.Stat.Ann. §§ 1701 -- 1798 (Purdon 1987) (the "Financial Responsibility Law"). These sections require an insurer issuing or delivering liability insurance policies covering motor vehicles to make available for purchase first party benefits with respect to "injury arising out of the maintenance or use of a motor vehicle . . ." 75 Pa.Cons.Stat.Ann. §§ 1711, 1712. Appellants contend that the trial court erred in concluding that as a matter of law, their injuries arising from the dog bite did not arise out of the maintenance or use of a motor vehicle.

The heart of appellants' argument is as follows. Under the now repealed Pennsylvania No-fault Motor Vehicle Insurance Act, tit. 40, §§ 1009.101-1009.701 (Purdon 1987) (repealed effective Oct. 1, 1984), insurers were required to pay no-fault benefits for injuries arising ...


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