*1
Compare
Moore,
Commonwealth v.
change
sentence.
92, 395
with Commonwealth v.
Pa.Super.
(1978),
A.2d 1328
Lockhart,
60,
223 Pa.Super.
v. E. KNIGHT. Sara Superior Pennsylvania. Court of Sept. 1979.
Submitted Filed June 1980. *2 Morrisville, Conturso, for appellant. Charles J. Doylestown, appellee. Mcllhinney, Charles CAVANAUGH, JJ. SPAETH, Before and HESTER SPAETH, Judge: sustaining preliminary from an order
This arises appeal trespass. complaint an amended dismissing and objections summa- complaint may The of the amended аllegations 9, 1976, was September appellant rized as follows. On and collided with County Bucks an automobile operating At the time of the operated appellee. an automobile accident, appellant Jersey, was resident of New his Appellee in that was a registered automobile was state. registered and her was resident of automobile appellee’s negli- here. The collision occurred as a result of appellant injuries and caused for which gence, physical expenses incur exceeding has or will medical appellant $200.00, and other hospital expenses, x-rays “exclusive of caused diagnostic expenses,” appellant and also medical physical pain anguish. complaint and mental further alleged law, right appellant’s sue on account of these was to be determined the law injuries domicile, e., Jersey, state of his i. New and that under Act, Jersey Reparation 6A-8 of the New Automobile (1973), N.J.S.A. of an 39: 6A-8 a victim automobile accident has to sue in tort whenever cost of treatment, bills, medical hospital exclusive of x-rays, *3 other exceeds diagnostic expenses $200. 22, 1978,
On filed February appellee preliminary objec- to complaint, tions the the lower amended which court sustained on 1979. The lower court believed February appellant’s 301(a) that action was barred by of the Act, Motor Pennsylvania No-Fault Vehicle Insurance 40 1009.301(a) (1979-80 P.S. Supp.), provides: Tort is abolished with liability any injury to that takes in place this accordance with the State of this act if injury such arises out of the maintenance or vehicle, use of a motor except that [******]
(5) A person liable for remains damages non-economic detriment if the accident results in:
[******] (B) the value reasonable of and necessary reasonable services, medical and including prosthetic dental devices ambulance, and necessary hospital professional nurs- ing expenses in the care and diagnosis, incurred recovery of victim, the of diagnostic ray exclusive costs and x— ($100) rehabilitation costs in excess of one hundred dollars is in ($750). excess of hundred fifty seven dollars met this had not appellant $750 lower court held that
The complaint alleged the amended since requirement, threshold only were in excess of expenses that medical appellant’s $200.1 Act, 40 No-Fault 110(c)(2) Pennsylvania
Section (1979-80 1009.110(c)(2) Supp.), provides: P.S. § of a deceased of a victim or of a survivor right law of the by be determined the victim to sue tort shall victim. If a victim not of domicile of such state state, to sue shall be determined right domiciled in a such resulting accident law the in which the of state by occurs. injury damage property being “impossible as This has been criticized provision Barrett, No- interpretation Pennsylvania or execution.” Act Act: Practice Under the Fault Motor Vehicle Insurance 1975). We do not find it all that (Pa. n. 51 Bar Institute princi- embodies two choice-of—law obscure. The appellant’s argument was barred We that action 1. note appellee’s Pennsylvania’s preliminary objections. not reused in written No-Fault Act was objections, appellee preliminary In ad- her Pennsylvania purposes law looks to mitted “for the the domicil of the victim for however, of demurrer Appellee argued, applicable law.” tort rule for tort suits that because “[t]he wrong governs Jersey place of the state of New is that the law of the Jersey injured parties law would to suit .... New [sic] tort,” rights and that for this for the to sue look reason appellant’s action was barred authority proposition, supporting Appellee for this Act. did not cite holding proposition contrary v. and the seems to be Cirelli Co., (1977) (New Jersey Ins. 72 N.J. 371 A.2d Ohio Cas. regardless coverage Jersey no-fault law affords place to New assured Co., accident). First Ins. See also Goldstein v. General *4 issue, Pa.Super. We need not decide this 392 A.2d however, argument. argument appellee her The has abandoned appellee by opinion, and was not discussed the lower court in its argument appeal. discrepancy the does not raise it on raised addressed The between by appellee preliminary objections and the one in her written by opinion the lower court in nevertheless raises the its possibility that the lower court decided an issue that was never raised, waived, by possibility parties. if the This raised was troublesome, appellant to attack on this but because has declined court, by appeal procedure the lower and because the followed jurisdic- by may implicated its issue addressed the lower court have complaint, appropriate to tion to entertain the we deem it reach merits of the lower court’s decision. of the victim of a motor vehicle accident 1) right The pies: domicile; in shall be determined the law of his by to sue tort state, is not domiciled in the victim’s 2) and if the victim a by to sue shall be determined the law of the state right to principle applies which the accident occurred. first case, for the amended complaint alleges appellant this that was domiciled in New at the time of the accident. It Jersey therefore follows the to appellant’s right sue must be deter- mined the law of not by New and it Jersey, further follows that action in not appellant’s barred 301(a). section barred,
In lower holding appellant’s that action was court found an irreconcilable conflict between sections 110(c)(2) 301(a). emphasized and The lower court that under 301(a) liability section is abolished with respect “[t]ort State,” that in this words injury place takes that “any encompass injuries non-resi- injury” necessarily dents. 301(a) While we concede that section have might drafted, been more wе tightly reject nevertheless the asser- tion that 110(c)(2). it is in irreconcilable conflict with section 301(a) provides
Section that is abol liability “[t]ort ished” only “with takes any injury place this provisions State accordance with the of this act.” The phrase “in accordance with of this act” abolished,” modifies the verb “is and by incorporating all the act, other provisions of the no-fault indicates the extent to which tort is abolished. As one of the “provisions of act,” 110(c)(2) explicitly preserves Section th[e] Commonwealth, a non-resident sue tort this provid ed that his action is maintainable under the law of his domicile. 301(a) 110(c)(2) are not in Sections therefore conflict, but are rather that func complementary provisions tion as a unit.
Moreover, if even we could find a conflict between sec 110(c)(2) tions and 301(a), 110(c)(2) would neverthe less prevail under the principle “[wjhenever a a statute shall be in conflict with special statute, provision in the same or another the two shall *5 552 both.”
construed, may given if so that effect be possible, To that (1964-78 Supp.). 1 1933 hold all non Pa.C.S.A. § 301(a) of section requirements residents must meet nullify order to sue in tort would be to then there would no 110(c)(2), section be situation 110(c)(2) operate. apply which section could To section 110(c)(2) to non-residents and limit the effect of section residents, however, 301(a) to is to and effect to give meaning provisions. both position even were we to with the taken
Finally,
agree
court, that an
conflict existed be
the lower
irreconcilable
110(c)(2)
301(a),
110(c)(2)
tween sections
still section
the conflict
principle
would
under the
prevail
“[i]f
irreconcilable,
special provi
between
two
[ ]
be construed as an
prevail
excep
sions
shall
and shall
[sic]
(1964-78
tion
provision.”
to the
Pa.C.S.A.
general
§
(1975);
460 Pa.
We granted ture could not have non-residents reasonably where residents were denied right to sue in tort in situations the right. might have policies prompted
To understand 110(c)(2), the Legislature to enact section dissent, believing 110(c)(2) 301(a) although 2. The that sections exist, reconcilable, conflict did are states that if an irreconcilable (1964-78 301(a) prevail then section would under 1 Pa.C.S.A. however, Supp.). provision, That states: Except provided (relating as 1933 of this title section whenever, statute, particular general), in the several controls same irreconcilable, clauses in order of date or are the clause last position prevаil. [Emphasis shall added.] conjunction should read in with 110(c)(1), 40 P.S. *6 1009.110(c)(1) (1979-80 Supp.), provides: The basic loss benefits available to any victim to any survivor of a deceased victim shall be determined pursu- ant to the of the provisions state plan no-fault for motor vehicle insurance in effect in the state of domicile on victim the date when the motor vehicle accident result- ing in injury occurred. If there is no such state no-fault plan in effect or if the victim is state, not domiciled in any then basic loss benefits available to any victim shall be determined pursuant provisions of the state no- plan fault for motor vehicle insurance, if in effect any, the state in which the accident resulting in injury occurs. Thus, section 110(c)(1) expresses two rules governing of rights a non-resident to recover basic loss benefits when the non-resident is injured in a motor vehicle accident in this state. If the non-resident is domiciled in a state that has in effect a state plan no-fault for motor vehicle insur- ance, the non-resident is denied the benefits available under Pennsylvania’s No-Fault Act and is remitted to the benefits available under the of plan his home state. If the non-resi- dent is domiciled in a state that does not have in effect a state plan, no-fault or if the non-resident is not domiciled in state, any then he is entitled to the basic loss benefits provided under Pennsylvania’s However, No-Fault Act.3 no may 3. It statutory problem noted that a similar construction exists regard 110(c)(1) 201(a), with 1009.201(a) to sections 40 P.S. § (1979-80 Supp.), 110(c)(2) of the act as exists between sections 301(a). 201(a) provides: Section resulting injury Commonwealth, If the accident occurs in this any any victim or survivor of a deceased victim is entitled to receive act. basic loss benefits accordanсe with the of this evidently appellant The lower court believed that was under entitled this Pennsylvania’s to the basic loss benefits under No- However, by Fault Act. apparent, such a conclusion no means scope 201(a) 110(c)(1) of section is limited section for the scope 301(a) same reasons that the of section is limited section 110(c)(2). We also note that at least one other court has misconstrued the 110(c)(1). effect of section In Wierbinski v. State Farm Mutual Ins. Co., F.Supp. (W.D.Pa. 1979), a New York resident was 110(c)(2) which of these rules pertains, matter that are the tort remеdies always the non-resident retains law of his home state. available under the has been defended statutory fairness this scheme following grounds: on the consistent with
First,
it
is more
statutory
[the
scheme]
conflict of laws problems by
treatment
contemporary
court has
courts.
If a
over
it
look first
to Penn-
jurisdiction
controversy,
a
will
law, including
provisions. Pennsyl-
its conflicts
sylvania
vania
view on
generally accepts the Restatement Second
law,
contacts” of
“significant
conflicts
which looks
case,
In
parties
controversy.
in the
involved
*7
is
the court will consider
the
signifiсant “contact” which
But,
in a
importantly,
more
no-fault
party’s domicile.
parties
injured Pennsylvania
the
in an
accident. Since
in
automobile
Pennsylvania
and the
had
the
No-Fault Act
conceded
under
law,
was to be
common
to basic loss benefits
Wierbinski’s
law,
interpreted
according
New
to New York
the court
determined
the benefits that were due. As it
York’s No-Fault Act to determine
happened,
who
Act afforded a resident
was
so
New York’s No-Fault
injured
accident the maximum
in an
motor vehicle
out-of-state
plan
the
in
the no-fault
of
state
benefits that were available under
which the accident occurred.
Thus, the
held that Wierbinski
court
Pennsylva-
under the
was
to the maximum benefits allowed
entitled
however,
implied
opinion,
that Wier-
nia act. Later
its
the court
Pennsyl-
provided by the
binski was entitled to the basic loss benefits
vania
regardless
he was entitled
those
Act
of whether
No-Fault
provides “cover-
New
law since our act
benefits as a matter of
York
[Pennsylvania],
age
Pennsylvania
coverage
persons
and ]
for
involved
an accident
[
all
providing
‘legitimate
permanent interest’ in
has a
injuries
F.Supp.
at 664.
within
its boundаries.”
provi-
ignored
opinion,
the choice-of-law
Still later in its
sions
law
the court
Pennsylvania
common
Act and held
the
No-Fault
govern
Pennsylvania
the
“it
Act which most
is the
pro-
attorney’s
insurance
and interest on overdue
award of
fees
ceeds.” Id.
applied
Finally,
in other states have
note that several courts
we
provisions
acts in determin-
their
motor vehicle insurance
no-fault
ing
rights
loss benefits and to
on
victims
basic
non-resident
Minn.,
Co.,
Cas.
See Hime v. State Farm Fire &
sue
tort.
Farias,
(1979); Cyr
N.E.2d 890
367 Mass.
N.W.2d 829
v.
Co., Fla.App.,
(1975);
(1974).
Liberty
state no-fault ... of the victim.” underlying the policies
A concerns third consideration provide Act to Is the the policy the No-Fault Act. for all provide or to injured Pennsylvania, all persons accidents? As in motor vehicle injured Pennsylvanians to noted, provide intent of the Act- is the basic already in motor injured to Pennsylvanians basic loss benefits injured in accidents, persons and to other vehicle for. provided would not otherwise be who Pennsylvaniа (that, under Section interpretation The contrary [of persons injured No-Fault all the Pennsylvania Act] to no-fault bene- Pennsylvania are entitled Pennsylvania person in a for a from a no-fault fits) could result boon on the and a drain injured state who is bene- provide insurance in order Pennsylvania system premi- who no insurance pay fits to out-of-state residents ums in this jurisdiction. Assoc., No- Lawyers Pennsylvania Trial Act, 1:16.3 at 131-32
Fault Motor Vehicle Insurance omitted). 1979) (footnotes (Shrager ed. Assoc., No-Fault Insur-
See also American Bar Automobile on Automobile ance: A the Committеe Study by Special 1978); No- (February Kozyris, Insurance 60-62 Legislation Insurance and the Conflict of Laws— Fault Automobile Home-Style, Knot 1972 Duke L.J. Cutting the Gordian 389-403. court that direct a
By adopting principles choice-of-law determining the of the victim’s domicile look to the law his to sue in right loss benefits and right victim’s basic expec- the reasonable tort, has ensured that Legislature accident in this tations of victim in an automobile every If victim is a non-resi- will be Commonwealth fulfilled. no-fault state that has its own dent who is domiciled benefits act, provided excluded from the completely he Aсt, keeps right but he Pennsylvania’s are due to him under to recover the benefits state, his home and also the no-fault in effect plan with the laws of that to maintain a tort action in accordance no no more and less gets state. The non-resident thus would have coverage he coverage for his losses than state, home occurred in his received had the accident resi- is to the non-resident say *9 to the law alike, recovering according treated both are dent domiciles. respective of their who exists that a non-resident possibility
Admittedly, a no-fault act passed that has not is domiciled in a state 110(c)(1), (2). under section may receive liberal treatment 110(c)(1), participate such a non-resident may Under section act regard- under the the benefits available accident, retaining, while still causing less of his fault in his to sue in tort under the 110(c)(2), under section Nevertheless, Legislature might laws of his home state. a non-resi- public policy requires concluded that have always in this state dent in a motor vehicle accident injured a no-fault It plan. basic loss benefits under guaranteed be have Legislature might that the should also be remembered choice-of-law persuaded any generally-worded been application large capable ready should cases, number of if in a case some particular inequity even pur- has stated: “The might result. As one commentator is, extent, pose large simplification of no-fault laws to a simplification, of automobile accident administration. That for interstate cases and administered under state governed laws, and not lost unless statute totally national will be clear, state, just in each forum as to how the completely Leñar, aspects extrastate of each case are to be handled.” Statutes, (1977) 966-67 Choice-of-Law Tenn.L.Rev. (footnote omitted). also Insurance Kozyris, See of Laws—An Interim 1973 Duke Update, and the Conflict L.J. 1009.
The order of the lower court is reversed.4 CAVANAUGH, J., files a dissenting opinion.
CAVANAUGH,
dissenting:
Judge,
Toter,
Appellant,
Jersey,
Michael
a resident
New
was
involved in a
accident in Bucks
Penn-
County,
motor vehicle
Knight,
on
1976.
E.
sylvania,
September
Appellee, Sara
panel
4. We note that another
of this court has reached the same
McCoy,
Pa.Super. 149,
v.
conclusion we reach here. See DuBose
On question sole for our determination is whether the appellant’s right bring to an action in trespass is controlled Pennsylvania No Fault Insurance Act provides that medical expenses must exceed $750.00 exclusive of diagnostic x-rays costs and rehabilitation costs tort, order to sue in or the New Jersey No Fault Insur- ance Act $200.00, which has a lower threshold of exclusive of hospital exрenses, x-rays, and other diagnostic medical ex- penses.4 Paragraph complaint trespass
1.
9 of the amended
states:
accident, plaintiff
“9. As a result of this
been
has
or will be
obliged
expend
undergo
to receive and
medical attention and care and to
money
expenses
various sums of
or incur various
for the
injuries
suffered,
he has
the cost or reasonable value of which is an
amount which
hospital
$200.00
is in excess of
exclusive of
ex-
penses, x-rays,
diagnostic
expenses
may
and other
medical
and he
obliged
expend
expendi-
to continue to
such sums or incur such
for
tures
an indefinite time in the future.”
19, 1974,
July
1009.101,
2. Act of
seq.
P.L.
40 P.S.
et
§
pointed
majority opinion,
panel
3. As
out in the
another
has reached
majority
the same
appellant
conclusion as the
that the
sue in
Jersey,
tort is
appellant’s
determined
the law of New
McCoy,
domicile.
Pa.Super.
DuBose
v.
(a) in this State place takes injury if such of this act with the accordance or use of a motor of the maintenance out arises injury that: except vehicle non-eco- damages for A remains liable
(5) person in: if results nomic detriment the accident necessary value of reasonable (B) the reasonable services, devices including prosthetic dental medical and *11 ambulance, hospital professional and necessary care and diagnosis, in nursing expenses incurred victim, x-ray of diagnostic of the exclusive recovery hundred in excess of one costs and rehabilitation costs fifty hundred ($100.00) dollars is in excess of seven 301, 19, 1974, 489 P.L. ($750.00). July dollars . . Act of § 40 1009.301. P.S. § alone, I would have no diffi-
Reading the above (exclusive of diagnos- in services deciding that mеdical culty exceed the costs) must tic costs and rehabilitation x-ray in could be before an action tort threshold amount of $750.00 in an acci- injuries suffered Pennsylvania commenced in for However, the statute in this dent which occurred State. 110 as follows: also in Section provides of a deceased victim a or of a survivor right of victim of the state the law by to sue in tort shall be determined 1009.110(c)(2). 40 of of such victim. P.S. domicile act, required any person maintain by who is to this or to mandated the act, any person a coverage who has mandated this or to as а result of 4 of this act to receive benefits under Section maintenance, operation, arising ownership, bodily injury, out of the State, bodily injury, is if the in this or use of such automobile body solely and the medical of the confined to the soft tissue injured person or the expenses equivalent to be incurred such incurred or necessary treat- reasonable and value thereof for the $200.00, injury, of bodily exclusive is less than ment of such hospital expenses diagnostic expenses, x-rays medical and other Annotated, 39:6A-8). (New Jersey Statutes ... 560 contends that this
Appellant the Pеnnsyl- Statute, vania No-Fault we must look to the law of New determine Jersey applicable threshold amount action in commence an tort. ignores
This contention the clear 301 of language § No-Fault Act which tort Pennsylvania abolishes “with takes this any injury place State” unless expenses diagnos- medical exceed exclusive of $750.00 tic costs and rehabilitation costs. x-ray below
The court found an irreconcilable conflict between 301 Statute. I Pennsylvania No-Fault § § However, would hot this far. I go believe that order for a person domiciled outside of to sue Pennsylvania tort injuries resulting from an accident which has expenses occurred medical must exceed as provided for 301 of the Pennsylvania $750.00 § No-Fault Statute.
In construing statute, every provision given must be Act, 25, effect. Statutory Construction Act of November 1970, 707, 1921, P.L. City Pa.C.S.A. of Wilkes-Barre v. Ebert, 361, 349 A.2d Pa.Cmwlth. We ignore should not expenses threshold medical merely because Jersey Statute New has a lower threshold. If the intended that the medi- legislature cal threshold was to be *12 if only the accident victim $750.00 was domiciled in it so could have stated. On the unambiguous it used contrary, to abolish tort language liability respect with accident occurring Pennsylva- nia $750.00, where medical do not expenses exceed exclusive of diagnostic x-ray costs and rehabilitation in excess costs of one dollars. hundred
I have findings considered the of the legislature which found an insurance law the “eliminates need to determine fault except when a victim very is seriously injured” a is comprehensive fair of system insurance. 19, 1974, Act of 489, 40 July P.L. 1009.102 (emphasis P.S. § added). Jersey apparently New does not require injuries be as as serious does Pennsylvania bring order an I do not intend tо injuries. action in tort to recover for expenses the seriousness of an with medical equate injury legislature from the but our has determined resulting injury, (exclusive that if of expenses medical do not exceed $750.00 costs) enough certain is not serious to result in a injury action based on tort. trespass Code, in 110 of the its discussion § states: “If a nonresident is involved in an Act Commonwealth, will
accident in the he receive benefits as provided plan. under his state of domicile If his no-fault plan, state of domicile has no such or if the nonresident has domicile, no state of then hе will provided receive benefits as Commonwealth no-fault Title Pa. plan.” Code 66.1-110(c)(l)(b). The Pennsylvania Code silent with § to the situation where the nonresident’s state of domicile has a lower threshold of medical expenses than does of Pennsylvania. State
I do not believe that 110 and 301 of the No-Fault § § However, are irreconcilable. if are irreconcila- they Statute Act, ble, Statutory then under the Construction would § prevail over 110. The Construction Act of Statutory § 25, 1970, 1934 provides November P.L. 1 Pa.C.S.A. § irreconcilable, that when clauses of the same statute are prevail. last clause in order of shall I am convinced position having abolished tort lia- legislature unequivocally where an accident occurs in bility cases medical do not exceed did not intend to expenses $750.00 happens reinstate such where the victim to be domiciled outside of the Commonwealth and the state of the though victim’s domicile an action in tort even permits medical are less than a conclusion expenses Such $750.00. unambiguous language would not to the only contrary statute, contrary express but to the intent also legislature as set fourth in the no-fault statute to is very seriously allow actions in tort where the victim only injured.
I below. would affirm the order of the court