57 Pa. Commw. 121 | Pa. Commw. Ct. | 1981
Opinion by
Anthony Lyngarkos has appealed from an order of the Court of Common Pleas of Erie County sustaining Mackay-Swift, Inc’s (Mackay), a motor vehicle dealership, demurrer to a count of the appellant’s complaint in trespass seeking damages from Mackay for the latter’s issuance of a temporary motor vehicle registration card and plate without proof that the buyer had insurance.
Lyngarkos alleges that he is a citizen and resident of Pennsylvania; that Mackay is a new and used car sales corporation with its principal place of business in North East, Pennsylvania; that William George is a citizen and resident of New York; that on or about December 17,1977, Mackay sold a 1971 Jeep to George and issued a Pennsylvania temporary registration card and plate for the Jeep; that Mackay issued the temporary registration plate as an agent for the Pennsylvania Department of Transportation; that at the time Mackay issued the temporary registration plate to George, George did not possess No-fault insurance coverage;
In the count directed to Mackay, Lyngarkos avers that Mackay knew or should have known that proof of No-fault insurance was required before issuing a temporary registration card and plate to George for the Jeep; that Mackay owed a duty to Lyngarkos and others similarly situated to insure that George had proper No-fault insurance coverage prior to issuing the temporary registration; that Mackay was negligent in issuing a temporary registration to George, thereby allowing George to operate the Jeep on public highways, without proof of No-fault insurance coverage ; and that as a result of Mackay’s negligence, Lyngarkos is unable to collect No-fault benefits for the injuries sustained in the accident. In other counts of the complaint Lyngarkos alleges that since Mackay acted as agent for the Department of Transportation for the distribution of temporary registration plates, the Department is liable and that George was negligent in failing to obtain No-fault insurance as required, and therefore also liable. However, as noted, we are concerned only with Mackay’s demurrer.
The court below interpreted the count against Mackay as one to recover from Mackay for interference with Lyngarkos’ right to recover N,o-fault benefits occasioned by the negligent failure of Mackay to secure proof that George had No-fault insurance prior to issuing the temporary registration card and plate. It then determined that Mackay had a statutory duty to make certain that George had No-fault insurance coverage before issuing a temporary registration plate; that this duty was owed to Lyngarkos and others in like circumstances; and that recovery may be had for Mackay’s breach of duty. The court further held that before Lyngarkos could recover from Mackay he must exhaust all possible remedies available under the No-
At the outset we note the unusual facts of this case preclude Lyngarkos from recovering any benefits under the No-fault Act, since the accident occurred outside of the Commonwealth and neither Lyngarkos nor the vehicle in which he was injured was insured.
Thus, Lyngarkos must resort to a tort action if he is to recover damages. While it is true that the No-fault Act has partially abolished tort liability for motor vehicle injuries, this abolition applies only to injuries that take place in the Commonwealth. Section 301(a) of the No-fault Act, 40 P.S. §1009.301(a). Thus, Lyngarkos has a tort action.
We agree with the court below that an automobile dealer who issues a temporary registration card and plate to a purchaser without first securing proof of No-fault insurance is answerable in trespass to one injured by the dealer’s neglect. Section 104 of the No-fault Act, 40 P.S. §1009.104 requires owners of motor vehicles operated or registered in the Commonwealth either to carry No-fault insurance or to be self-insured. Section 1 of the Vehicle Code, Act of June 17, 1976, P.L. 162, as amended, 75 Pa. C. S. §1305(a) requires that an application for registration of a motor
The court below dismissed the claim against Mackay
The court’s second reason given for holding that Lyngarkos had failed to exhaust his remedies under the No-fault Act was its belief that under Section 301 (a)(1) of the No-fault Act, 40 P.S. §1009.301(a) (1), Lyngarkos must first seek to impose tort liability upon George, as the owner of the uninsured vehicle in which Lyngarkos was injured. However, as noted previously, Section 301(a) of the Act applies only to injuries in accidents occurring in Pennsylvania.
More fundamentally, Lyngarkos here invokes the No-fault Act only to say that he is not entitled to benefits because, inter alia, George had no No-fault insurance by reason of Mackay’s (and in another count of
We thus reverse the court’s dismissal of the count against Mackay. Of course, it will still remain the province of the fact finder to determine at trial whether or not Lyngarkos has proven negligence on the part of Mackay in failing to ensure that George possessed No-fault insurance prior to issuing him a temporary registration eard and plate. And, if Mackay is found to be negligent, it will also be necessary to decide the respective liability of Mackay and George for the inability of Lyngarkos to collect No-fault insurance benefits.
Finally, Lyngarkos takes issue with the lower court’s dictum indicating that Lyngarkos, even if he were to prevail in his claim against Mackay, would be limited in his recovery to an amount equal to that which he would receive under the assigned claims plan contained in the Act. We believe that this dictum is erroneous. The object of a tort action is to obtain compensation for the plaintiff’s injuries. Lyngarkos alleges that his injury in this action is his inability to recover compensation under the No-fault Act. From the fact that it was Mackay’s issuance of the temporary registration card and plate to George that allowed the Jeep to be operated on public roads, it follows that, if
Order
And Now, this 26th day of February, 1981, the order of the Court of Common Pleas of Erie County, No. 3192-A-1979, sustaining the demurrer of MaekaySwift, Inc., and dismissing the Count of the Complaint in Trespass of Anthony Lyngarkos (Count I) is reversed, and the record is remanded.
See the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, §101 et seq., 40 P.S. §1009.101 et seq., (No-fault Act).
We further note that, had Lyngarkos resided in a household with a spouse or other relative who was a named insured, Lyngarkos would have been deemed an insured and would have been entitled to No-fault benefits. Section 103 of the No-fault Adt, 40 P.S. §1009.103.
We agree with the lower court’s observation that recovery in instances such as presented here could effectuate the purpose of the No-fault Act to secure compensation to accident victims by promoting watchfulness among those charged with implementing the No-fault Act.
We reiterate that we are concerned here only with the demurrer of Mackay. We note, however, that the Department of Transportation filed a preliminary objection in the nature of a demurrer in the court below, on the ground of the sovereign immunity of the Department. The lower court has delayed its decision on the Department's demurrer pending the outcome of the present appeal.