*1 entry of an order granting appropriate Plaintiffs an period within which to responsive pleading file a to Defendant’s Preliminary 11, filed Objections January 1991 and its Affi- 25, davit filed 1991. February Jurisdiction relinquished. WIEAND, J., files concurring statement.
WIEAND, Judge, concurring: I join the majority’s decision to purpose remand for the allowing plaintiffs to file a responsive pleading to defen- dant’s preliminary objections raising a question of jurisdic- I tion. write separately to observe that right this to file a responsive pleading to preliminary objections exists only where the aver preliminary objections facts and where said preliminary objections have duly been endorsed with a notice to plead. Where preliminary objections averring facts are not endorsed with a notice to plead, the facts averred in the preliminary objections are deemed denied. 1026(a). See: cases, Pa.R.C.P. In such it becomes the burden of the objector prove the alleged facts deposi- via tions or evidentiary hearing.
his Wife and COMPANY, Appellant. HARLEYSVILLE INSURANCE Superior Pennsylvania. Court of
Argued Sept. 1991.
Filed Feb. 1992. *3 IV, Norristown, for appellant. Pugh, H. William Philadelphia, appellee. Baer, Phillip H. OLSZEWSKI, SOLE, DEL WIEAND, McEWEN, Before HUDOCK, POPOVICH, TAMILIA, JOHNSON and BECK, JJ. SOLE, Judge:
DEL
appeals
Company, [Harleysville]
Insurance
Harleysville
of
Judgment entered
favor
Summary
from
an award
in the
Downing,
and Mrs.
amount
Plaintiff-Appellees,
challenges this award
$90,000
Harleysville
plus
interest.
conclusion
improper
on an
premised
that it is
on the basis
Harleysville
that Mr.
wrongly allow
that this award would
vehicle and further
coverage for first
bene-
multiple
party
Downings
receive
this
Because
equal priority.
two carriers
against
fits
of the decision
question
into
review
second issue called
Compa-
Insurance
in Manolakis v. Transamerica
reached
alloc,
(1990),
granted,
We owned a car Downing, facts. Mr. who neither underlying car, traveling was relative who owned a any nor with lived Hartley W. operated by in a vehicle Gerald passenger Company the Prudential Insurance by insured which was Mr. Hart- on their proceeding journey, While [Prudential]. aby flat tire noticed a vehicle disabled ley Downing and Mr. stopped render assistance. they The disabled vehicle was insured by Harleysville. Mr. offered to change the tire on of the operator behalf of the disabled vehicle. standing While next to the side of the disabled holding change tire, the the jack the vehicle and Mr. Downing by operated were struck a third vehicle by driving uninsured motorist who was under the influence of alcohol. Mr. Downing suffered serious him injuries causing to remain a comatose state since the accident and result- ing in amputation of his right leg. His medical ex- penses $100,000. have been substantially excess
In 1986 Mr. Downing guardian, and his wife and Billie Jean Downing, commenced a civil action against both Pru- dential and Harleysville first benefits. Prudential paid the subsequently Downings the maximum amount of $10,000, its coverage, plus interest and counsel fees and (The was dismissed from the Stipulation action. of Dismis- signed sal parties $9,300.) indicates the amount to be Downings The then filed a motion for Summary Judgment against Harleysville, which answered and filed a cross Judgment. motion for The Summary granted court Downings’ motion. Since the coverage maximum under the Harleysville $100,000 policy Downings and since the $10,000 Prudential, already recovered from the court en- $90,000 tered a Judgment for representing the balance of coverage The available. trial court reasoned that under Motor Pennsylvania Vehicle Financial Responsibility seq., Law, 75 Pa.C.S.A. et both the Prudential vehicle in which he was traveling as a passenger and the disabled ve- hicle to which he was providing assistance when the acci- dent occurred. upon finding Based this the court ruled that the Downings were entitled to recover from both carriers who at were the same priority reaching level. this the court rejected Harleysville’s conclusion position that the permitting court was the “stacking” coverage. provisions of the MVFRL address the sources of recovery respective and their priority levels 1713. In
20 the motor relationship with Downing’s Mr. determining insurers, detail necessary it is the vehicles involved provisions. its of benefits 1713. Source
§ (a) 1714 section Except provided General rule. — claimants), suffers person who (relating ineligible a motor or use of out of the maintenance arising injury against applica- benefits recover first shall vehicle priority: following in the order coverage insurance ble he is the insured, the on which (1) policy For a named named insured. insured. insured, covering the
(2) policy the For an vehicle, the motor of an insured (3) occupants For the that motor vehicle. policy on motor occupant of a is not the For a who in the motor vehicle involved any on policy the parked paragraph, of this purpose For the accident. is not a motor vehicle motor vehicle unoccupied as to parked it so unless was an accident involved risk of injury. unreasonable cause 75 Pa.C.S.A. § on Sum court, ruling the stated, the trial when
As motion, that determined Judgment mary and the Har Prudential vehicle the “occupant” both he conclude that We under leysville § vehicle; of either as an classified could be un against Harleysville rather, Downings may recover main arose from “the their 1713(a)(4) injuries because der § vehicle which of the disabled or use” tenance in the accident.” was “involved outlined levels priority each of the Recovery injury occurrence of an on the premised § motor vehicle.” or use of a “maintenance out of the arises 1713(a). For 1712 and See Pa.C.S.A. § is further well established use it “arise” from such injury connection between some causal must be there vehicle insur- before motor injury motor vehicle and *6 Id. first benefits. required pay party er is to in first addressed term scope The America, 311 North Company v. Tyler Insurance 95, (1983) 204 of 25, 29, 457 96 under Section A.2d Therein Act, 40 (repealed.) P.S. 1009.204 the No-Fault person alight- a had considering whether who the court was of that occupant a remained an vehicle. ed from vehicle The court concluded: motor vehicle until he “occupy”
He continues to
the
point
That
is
all
it.
severance
severs
connection with
to
opposed
he
oriented
highway
when
becomes
reached
then,
alighting passen-
the
oriented. Until
being vehicle
Until
occupant
to be an
the
continues
ger
[vehicle].
to
on
or
own without reference
person
a
his
her
such
a passenger
has
ceased to be
person
the
[vehicle],
the
occupant.
or
31,
Id., Pa.Superior atCt. Mutual Insur- Utica in subsequently court supreme Our (1984) Contrisciane, 504 Pa. A.2d ance Co. determining whether an “occupying” the term examined continued to alighted had from vehicle individual who in a case had been involved it. The individual that occupy result, and, standing as a minor motor vehicle accident (97) giving from his vehicle ninety-seven feet approximately struck and police officer when he was information The of the individu- motorist. estate by killed uninsured he continued to to establish that sought al was killed who prior to operating the vehicle which he was “occupy” the “occupying” defined the policy question accident. entering or from.” alighting “in or into upon or mean entitled the estate was reaching conclusion the to be would considered since the deceased be recovery accident, the time of the the vehicle at “occupying” criteria, it following found were court set forth met: or connection between the
(1)
a causal relation
there is
vehicle;
use
the insured
injury and
(2) the person asserting coverage must
inbe
a reasonably
close geographic proximity
to the insured
al-
though need
person
it;
not be actually touching
must
high-
be
oriented rather than
way
time;
or
oriented at the
sidewalk
(4) the person must also be
engaged
a transaction
essential to the use of the vehicle at the time.
Id.,
Guided these principles, we conclude that Mr. Down- ing had not remained an “occupant” of the Prudential vehicle in traveling which he was as a passenger prior to the accident.
Mr. Downing’s continued relationship with the Prudential
*7
vehicle is strikingly similar to the situation which existed
between an
and a
injured party
Cadillac
in
automobile
Aetna Cas.
Kemper
Co.,
& Sur. Co. v.
Ins.
Smith and Kendricks “highway-oriented” became when left the Cadillac for the they purpose helping Perry Moreover, pick-up with his truck. their actions were not essential to the use of the Cadillac. Unlike the situation Contrisciane, in where the had to togo police car, he using car before could continue his the actions of Kendricks Smith and were unrelated to the completely continued use of the Cadillac. at 215. F.Supp. were Kendricks nor Smith that neither court concluded
The of the accident. at the time of the Cadillac “occupants” deci expressed the rationale findWe Aetna to the Downing’s Mr. relation pertinent. particularly sion of the at the time vehicle, he had exited Prudential vehicle, not as of a disabled to the aid to come accident Downing Mr. relationship between “occupant.” of the least three fails to meet at vehicle the Prudential Downing’s Mr. espoused Contrisciane. four criteria to the use causally connected not injuries were he was occurred when they rather Prudential another motorist aiding while third some by struck Likewise, Downing was not Mr. her disabled vehicle. with of the acci at the time vehicle to the Prudential oriented find reached Aetna the conclusion adopt dent. We he left when ‘highway-oriented’ Mr. “became helping purpose for the [the vehicle] [Prudential Fi Id. with stranded vehicle].” [disabled motorist] [her] in a transaction engaging Downing was nally, Mr. at the time Prudential vehicle the use of the essential to prior actions fact, Downing’s the accident. the Prudential ve manner involve any did not accident that Mr. reasons we conclude hicle. For these insured Pruden the the “occupant” of was not an time of the accident. tial at the *8 Pru case, also rule that of this we From the facts subsec Downings to the responsible dential was person concerns a 1713(a). This (4) of subsection tion or use of out of the maintenance arising injury who suffers in accident but who is involved which a motor vehicle the motor vehicle. Subsection “occupant” of was not an as one motor vehicle” unoccupied and “parked defines a to cause if it “so as parked was only in an accident involved 75 Pa.C.S.A. injury.” risk of unreasonable was not the Prudential vehicle show that clearly The facts Further, in the nothing there is in the accident. “involved” Prudential that suggest, record, any parties do nor parked vehicle was “so as to cause an risk of unreasonable Thus, injury.” MVFRL, under the terms of the Prudential responsible payment was not for the of benefits to the Downings.
We turn now to an examination of Harleysville’s responsi- Downings. bilities The trial court found that Mr. Downing was in the status of an “occupant” of the disabled vehicle at the In reaching time the accident. this conclu- set forth Con- sion the court examined the four criteria triscaine and found they each had met. It been reasoned that since there was a causal relation between the injuries vehicle, and the use the disabled since Mr. Downing was close to the reasonably disabled vehicle at the time he was and since he injured, was oriented to the vehicle and engaged was a transaction can be said to be essential to the use of the vehicle (changing a flat tire), “occupying” disabled vehicle at the time of the accident. The trial court’s conclusion must ignores fail it prerequisite because to the application Contrisciane. the four criteria announced in Contrisciane and In defining “occupant” the term Tyler, supra., predecessor its considering the courts were alighted whether a who had from a vehicle remained In such a situation Contris occupant of that vehicle. ciane directs that the four criteria it sets forth are to be utilized to injured determine whether the party should be “occupant” entitled to recover as an vehicle. both Tyler and Contrisciane the injured party had been travel ing in the prior vehicle to the accident and the court was considering injured parties’ continued relationship with Contrisciane that vehicle. The criteria were also utilized to if injured party determine continued to hold the status Compa Shultz Nationwide Insurance ny, (1988)(where woman, A.2d 391 traveling who had been in a vehicle which ran out of gasoline putting gasoline who was into her injured passing when a car struck the vehicle her behind two); causing pinned her to be between the *9 547, 535 A.2d Inc., Son, v. Chubb & McGilley his had exited (1987),(where taxi driver who a struck another taxi driver was a from cigarette to “bum” bus.) passing a not from the case, alighted had Mr. this the disabled car vehicle; had never been inside he disabled he intended to indicate that ever even nothing there is relationship with Downing’s to disabled car. enter the to Kendricks’ relation here is identical the disabled vehicle Aetna, There supra. truck ship pick-up to the disabled in, occupant pick-up an Kendricks was any claim that dismissed. summarily at of the accident was truck the time stated, argument this has no “Clearly, simply The court position no merit that Mr. merit.” We likewise find which he occupant of the disabled vehicle Downing was an accident. aiding at the time Downing cannot be considered to have been Although Mr. accident, an at the time the status of of a as the insurer ve- Harleysville, we nevertheless find accident, responsible in the hicle involved be payment party first benefits under 75 Pa.C.S.A. 1713(a)(4). 1713(a)(4) “for a who is coverage refers
Section
regarding
first
occupant of a motor vehicle”
not the
provided
insurer which has
a
paid by
benefits to be
in the accident.” In
motor vehicle involved
“policy
any
on
under the No-Fault Act “the
construing these same terms
(4)
said,
interpreted
should be
as
‘subparagraph
has
court
claimant
written,
to an uninsured
who was
apply
and to
”
car;
pedestrian
or
namely,
bystander.’
of a
occupant
Co.,
Pa.Super. at
supra
Ins.
v. Nationwide
Shultz
Royal-Globe
Ins.
at 393
Schimmelbusch
citing
541 A.2d
(1977).
Subparagraph
We in this that the disabled vehicle “parked was not a so vehicle” the exception and a determi nation as to the manner which it was “parked” is irrele vant unnecessary. Aetna Cas. & Sur. Co. v. Kemper, supra, 657 214 F.Supp. at ftn. 1. We further conclude that the disabled vehicle was clearly a vehicle “involved accident.” was standing next to the disabled vehicle holding an instrument to change the tire of the passing when a car struck both the vehicle and Mr. Downing. Thus, Harleysville responsible for the pay ment of first to party benefits the Downings under the provisions 1713(a)(4). of 75 Pa.C.S.A. §
Although (a)(4), subsection which we find applicable to Harleysville, is the last in the order of priority provide a benefits, source of because we have also determined that Prudential was not at the same or higher priority level as Harleysville 1713, under 75 Pa.C.S.A. questions concern- § ing the or “stacking” receipt of multiple benefits are irrele- vant to this matter and will not be discussed.1 The trial court’s of Summary Judgment award in favor of the Down- ings against Harleysville is affirmed upon based Har- leysville’s responsibility under §
JOHNSON, J., files a concurring opinion which TAMILIA, J., joins.
JOHNSON, Judge, concurring: I concur in colleagues’ my conclusion that the trial court properly granted Summary Judgment in favor of Mr. and Downing. conclude, Mrs. I am however, not able to as does the majority, that no other carrier was at the same priority 1713(a) level under 75 Pa.C.S. as Harleysville. Rather, in § view, my the stipulated facts lead only the conclusion that Prudential could not have had a higher priority level 1713(a) than Prudential. Because I do not consider Manolakis v. Transamerica Insurance Company, 396 1. We note that appeal Prudential is not a to this and that the Downings challenged against have not the amount of their award Harleysville.
27 granted, (1990), 526 alloc. A.2d Pa. controlling under the A.2d to be facts entitled to us, Downings I hold that the were would before exhausted the lim despite having coverage by Harleysville I Accordingly, by Prudential. coverage provided its of the result. only majority’s concur case, I agree of this with the Under the facts stipulated cannot be considered conclusions that majority’s and that Harleysville be 1713(a). I falls within the fourth level insurer the third agree also Prudential at *11 1713(a) Downing cannot level of within because priority § of the Prudential vehicle to be be considered to he left vehicle to undertake business unrelated once that its and use maintenance. facts,
I from stipulated am unable to conclude the how- ever, the was not within the priority that Prudential vehicle 1713(a)(4). Hartley testified his by level defined Gerald § accident, following was found deposition that, Downing the par- both underneath the Prudential vehicle. Counsel for testimony. Nothing the of this stipulated accuracy ties did record me to conclude that not the leads it the thereby involving strike the Prudential accident; I join majority’s am unable to the consequently, not “involved in holding that Prudential vehicle was place Prudential within the accident” so as § seeks Instead, recovery Downing I the consider whether Prudential, paid the regardless having of whether allowable 1713(a)(4). For the liability, limits of its was within § follow, I recovery conclude that such reasons which precluded. by stacking increased benefits not be may
First policies cover- of motor vehicle coverage multiple limits of 1717(2). for same loss. Pa.C.S. ing an individual § Group, Erie Insurance Laguna (1988), 1717(2) panel a of this court held that 536 A.2d § from an first-party of benefits insurer precludes recovery once have first-party paid by benefits been an insurer a higher under 1713. priority §
In Manolakis, claimant sought first-party medical bene- fits from Company, Transamerica Insurance which denied the claim Allstate because Insurance Company, an insurer at the same of priority level under had already paid coverage. limits of its Transamerica contended that payment of additional benefits would constitute stacking, which prohibited 1717(2). Allstate had paid $10,000 claimant its limits of policy medical coverage $50,000 in income loss coverage. Manolakis sought further recovery expenses medical under the Trans- provided america policy coverage $100,000 which for $15,000 expenses medical for loss of income. The Manolakis court held that recovery of medical benefits sought would constitute stacking prohibited and was thus 1717(2). by § not, however,
I do find controlling Manolakis because the sought claimant total there benefits in excess the cover- age provided Here, the policy. either Prudential policy provided $10,000 limit for benefits, recovery first-party recovered. policy limits $100,000; however, first-party benefits Downing sought *12 $90,000 only Therefore, in first-party benefits. the total recovery sought by Downing is within limits of one of applicable I policies. would affirm the order of trial the. court I perceive because do such recovery consti- tute stacking.
Moreover, Legislature has for provided recovery from multiple 1713(b), carriers within states:
(b) Multiple equal priority. sources of insurer —The against claim is whom a asserted first under the priorities (a) set forth in process pay subsection shall and the claim if wholly responsible. insurer thereafter enti- tled to recover contribution rata from pro any other paid insurer for the costs of benefits and the processing sought the claim. If contribution is among insurers (a)(4), shall be proration subsection responsible motor vehicles. number involved on the based properly I the trial court has conclude that Accordingly, I and summary judgment, motion Downing’s granted result. in the majority’s concur J., TAMILIA, joins.
602 A.2d DEPARTMENT, Fair FIRE CLEARFIELD VOLUNTEER Foundation the Clearfield Park Board and OIL, Company) (formerly Boron Oil BP INC. Company, Inc. Coal Shawville COMPANY, INC. Appeal COAL of SHAWVILLE Pennsylvania. Superior Court of Argued Aug. 1991.
Filed Feb. 1992.