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GAIL P. HILL v. PORT AUTHORITY TRANSIT SYSTEM ALLEGHENY COUNTY (04/11/89)

decided: April 11, 1989.

GAIL P. HILL, APPELLANT
v.
PORT AUTHORITY TRANSIT SYSTEM OF ALLEGHENY COUNTY, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Gail P. Hill v. Port Authority Transit System of Allegheny County, No. GD 82-22473.

COUNSEL

Arthur L. Schwarzwaelder, with him, Diane J. Christel, Dickie, McCamey & Chilcote, P.C., for appellant.

Charles P. Falk, Baskin, Flaherty, Elliott & Mannino, P.C., for appellee.

President Judge Crumlish, Jr., Judge Smith, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case. President Judge Crumlish, Jr. joins in part I and dissents to parts II and III of this opinion.

Author: Smith

[ 125 Pa. Commw. Page 70]

Appellant, Gail P. Hill, appeals from the September 9, 1987 decision of the Court of Common Pleas of Allegheny County denying Appellant's motion for post-trial relief in the nature of a request for increase in a non-jury verdict of $20,938.38 at 18% interest rendered in Appellant's behalf.

Appellant raises three issues for review: Whether the trial court erred as a matter of law in concluding that Appellant's basic loss benefits recoverable against the Port Authority of Allegheny County (Authority) under the No-Fault Motor Vehicle Insurance Act*fn1 (No-Fault Act) were limited by Section 8553(d) of the Judicial Code (Code), 42 Pa. C.S. § 8553(d); whether the trial court erred in limiting the 18% interest due Appellant from the date of trial only; and whether the court erred in denying Appellant attorney's fees and costs incurred in pursuit of her no-fault claim against the Authority.

On December 15, 1980, Appellant sustained serious personal injuries when she was struck by a bus owned and

[ 125 Pa. Commw. Page 71]

    operated by the Authority as she walked along Fifth Avenue in the Oakland section of Pittsburgh. Appellant notified the Authority by letter dated January 22, 1982 of the accident and her demand for payment of no-fault benefits. The Authority denied liability contending that it was not the primary obligor of benefits to Appellant. In the course of reviewing Appellant's claim, the Authority discovered that Appellant had represented to the Bureau of Motor Vehicles that she had insurance coverage with Allstate from February 1, 1980 through January 31, 1981.

Appellant filed her complaint in assumpsit on December 1, 1982 alleging that the Authority was obliged to provide no-fault benefits to Appellant pursuant to the No-Fault Act. The Authority continued to deny liability on the premise that the Authority was not the primary obligor. Prior to trial, the Authority was permitted to file an amended answer and new matter raising governmental immunity under Section 8541 of the Code, 42 Pa. C.S. § 8541. Non-jury trial commenced on December 5, 1986.

By opinion and order dated April 15, 1987, the trial court awarded Appellant $13,365.55, the balance due on total hospital and medical expenses of $66,716.41 not covered by Blue Cross and Blue Shield; and $7,542.52 lost wages.*fn2 (This Court notes that the amounts awarded total $20,908.07 rather than $20,938.07.) The trial court determined that 18% interest payable on Appellant's no-fault claim shall be calculated from the date of trial, an amount estimated at $1,361.01 by the trial court. Further, the trial court denied Appellant's petition for reasonable

[ 125 Pa. Commw. Page 72]

    costs and fees under Section 107 of the No-Fault Act finding that the Authority had a reasonable basis for contest based upon the Bureau of Motor Vehicles records and Appellant's actions which caused ...


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