85 Pa. Commw. 397 | Pa. Commw. Ct. | 1984
Opinion by
The City of Philadelphia appeals a Philadelphia •County Common Pleas Court order granting in part the petition of Harry and Jane G-ubernick for no-fault benefits. We vacate and remand.
The Gubernicks were attempting to cross a street near their home in Philadelphia when they were struck by an unmarked Philadelphia police oar, resulting in personal injuries requiring extensive medical treatment.
The Gubernicks maintained their own health insurance coverage through which they were reimbursed for medical expenses.
On appeal, the City contends that the Political Subdivision Tort Claims Act,
A review of the record reveals that the City of Philadelphia did not, in its argument before the court below, address the issue of whether the Political Subdivision Tort Claims Act controls in this case. Ordinarily, questions not properly raised below will not be
Vacated and remanded.
Amending Order.
•The Philadelphia County Common Pleas Court order dated August 26, 1982, March Term, 1980, No. 6098, is vacated and this case is remanded to the common pleas court for further proceedings consistent with this Opinion.
Jurisdiction relinquished.
The Gubernicks did not own a motor vehicle and therefore did not possess no-fault insurance. They did, however, maintain their own voluntary coverage in Blue Cross and Medicare B. Medicare B is a voluntary insurance system under which a participant’s premium payment is matched by the federal government. Thus, in partially granting the Gubernicks’ petition, the common pleas court reduced the relief they requested by the amount of the federal government’s contribution to their Medicare B coverage.
Act of July 19, 1974, P.L. 489, as amended, 40 P.S. §1009.101-.701, repealed by Section 8 of the Act of February 12, 1984, P.L. 26 (effective July 1, 1984).
Act of November 26, 1978, P.L. 1399, as amended, formerly 53 P.S. §§5311.101-5311.803, repealed by Section 333 of the JABA Continuation Act of 1980, Aet of October 5, 1980, P.L. 693, 42 P.S. §20043. These provisions are now found in Sections 8541 through 8564 of the Judicial Code, 42 Pa. C. S. §§8541-8564.
In the absence of Commonwealth case law, the City of Philadelphia relies principally on Savit v. City of Philadelphia, 557 F. Supp. 321 (E.D. Pa. 1981), for its contention. Although this Court may look to Federal District Court decisions for guidance in the disposition of state actions, it is, of course, not bound by them as authority.
Section 8553(d) of the Tort Claims Act, 42 Pa. C. S. §8553(d), states:
IC a claimant receives or is entitled to receive benefits under a policy of insurance other than a life insurance policy . . . the amount of such benefits shall be deducted from the amount of damages which would otherwise be recoverable by such claimant.