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GARDENIA GREEN v. K & K INSURANCE COMPANY (11/27/89)

filed: November 27, 1989.

GARDENIA GREEN, AS PARENT AND NATURAL GUARDIAN OF LAWRENCE GREEN, A MINOR AND GARDENIA GREEN, ON HER OWN BEHALF,
v.
K & K INSURANCE COMPANY, TRAVELERS INSURANCE COMPANY. APPEAL OF K & K INSURANCE COMPANY



Appeal from the Order Entered, Docketed October 21, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 1308 August Term, 1987.

COUNSEL

L. Rostaing Tharaud, Philadelphia, for appellant.

Jeffrey M. Seiken, Feasterville, for Green appellees.

Thomas Patrick Kelly, Philadelphia, for Travelers Ins., appellee.

Cirillo, President Judge, and Kelly and Cercone, JJ. Cirillo, President Judge, files a concurring opinion.

Author: Cercone

[ 389 Pa. Super. Page 74]

Appellant, K & K Insurance Company, appeals from the summary judgment entered against it by the lower court. We affirm.

The underlying facts of this case, as determined by the lower court, are as follows. The minor plaintiff, Lawrence Green, was riding his bicycle on the sidewalk when he was allegedly struck by a motorcycle owned and operated by Alvin H. Butler. At the time of the accident, Mr. Butler was insured by appellant and the minor plaintiff did not reside in a household that owned an automobile and therefore did not have any insurance coverage.

Plaintiffs initiated this action stating a claim for medical expenses against either appellant as insurer of Mr. Butler's motorcycle or against appellee, Travelers Insurance Company, as insurer of the Assigned Claims Plan. Appellant moved for judgment on the pleadings while Travelers moved for summary judgment. Appellant's motion was denied while Travelers' motion for summary judgment was granted. Appellant filed this timely appeal. The sole issue for our review is whether the lower court erred in interpreting the Motor Vehicle Financial Responsibility Law (hereinafter referred to as "MVFRL") to require insurers of motorcycles to provide first party benefits to eligible but uninsured pedestrians injured in an accident. We affirm.

We note initially that when reviewing an entry of summary judgment, an appellate court may disturb the order of the trial court only where there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa. Super. 313,

[ 389 Pa. Super. Page 75549]

A.2d 1311 (1988). To uphold a summary judgment, there must not only be an absence of genuine factual issues, but also an entitlement to judgment as a matter of law. French v. United Parcel Service, 377 Pa. Super. 366, 547 A.2d 411 (1988). The trial court must examine the record in a light most favorable to the non-moving party and accept as true all well-pleaded facts in the non-moving party's pleadings. Boyd v. Albert Einstein Medical Center, 377 Pa. Super. 609, 614, 547 A.2d 1229, 1231 (1988).

The facts in the instant case are not in dispute. The dispute between the parties involves whether or not the lower court correctly applied the facts to the law as set forth in the MVFRL. Appellant argues that since insurers of motorcycles are expressly exempted from insurance requirements of other registered motor vehicles under §§ 1711 and 1712 of the MVFRL,*fn1 they are not required to provide first party benefits to the uninsured pedestrian injured in this accident. We disagree.

It is true that § 1711 of the MVFRL provides:

An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except . . . motorcycles . ...


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