DeMarco v. Napora

38 Pa. D. & C.3d 575, 1982 Pa. Dist. & Cnty. Dec. LEXIS 18
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedOctober 8, 1982
Docketno. 127 Civil 1982
StatusPublished

This text of 38 Pa. D. & C.3d 575 (DeMarco v. Napora) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeMarco v. Napora, 38 Pa. D. & C.3d 575, 1982 Pa. Dist. & Cnty. Dec. LEXIS 18 (Pa. Super. Ct. 1982).

Opinion

SHAULIS, J.,

This is an action for personal injuries sustained by plaintiff minor child. We have before us defendants’ preliminary objections in the nature of' demurrers, motions to strike and motions for more specific pleadings.

FACTS

Plaintiff William Bernard DeMarco, a minor, sues for injuries allegedly incurred due to the negligence of all defendants involved. Plaintiffs Frank and Doris DeMarco are husband and wife and the parents of said minor child.

On the date of the alleged accident, William was riding his bicycle when a truck, operated by George M. Napora, Jr., allegedly struck William while crossing an intersection in the Borough of Central City. Defendant George Michael Napora was the owner of said truck and the father of defendant [577]*577George M. Napora, Jr. Borough of Central City was named as a defendant for their alleged negligence in failing to adequately correct the purported dangerous conditions that existed where the accident occurred. More specifically, the borough is charged with failure to erect traffic-control devices, and failure to maintain an earthen bank, brush and vegetation located on the corner of the intersection.

DISCUSSION

1. Defendants George M. Napora, Jr. and George Michael Napora.

Defendants’ first preliminary objection is in the nature of a demurrer as to the third count of plaintiffs’ complaint. Such an objection will be sustained only if the complaint indicates on its face that the law will permit no recovery, Buckley & Co., Inc. v. Com. Dept. of Trans., 34 Pa. Commw. 182, 382 A.2d 1298 (1978), and only if the case is clear and free from doubt. Jim Bulow Motors v. Beeman, 33 Somerset L.J. 165 (1976). With this, in mind, defendants’ following specific averments will be analyzed:

1. plaintiffs are not entitled to collect medical expenses which are recoverable under the No-fault Motor Vehicle Insurance Act of Pennsylvania, 40 P.S. §1009.101 et seq. .

2. plaintiffs are not entitled to recover as damages loss of wages of said minor child.

Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980), involved a mother who was attempting to recover against a motorist for expenses iiicurred in having her daughter’s injuries treated and for loss sustained due to her being deprived of the daughter’s services and incomé. The mother filed a [578]*578complaint in trespass in her daughter’s name and in her own right. The court ruled therein that the mother’s claims were barred by the no-fault statute. In addition, the court indicated that only an injured individual was entitled to recover under the no-fault statute’s exception to the abolition of tort liability except where the individual is the survivor of the victim. 40 P.S. § 1009.301(a). See also Cannon v. Hohmann, 10 D.&C.3d 765 (1979), where husband was barred from recovering his wife’s medical expenses by §301 of the No-fault Act.

It is apparent that plaintiffs/parents are in the identical position as the mother in Smith. Consequently, they are not entitled to recover under the third count.

With one noted exception, plaintiff minor child is also not entitled to recover medical expenses in a tort action. This is due to the fact that section 202 of the No-fault Act permits the recovery of allowable expenses from the insurance carrier. Section 103 defines this to include, inter alia, professional medical treatment and care, emergency health services, and medical and vocational rehabilitation services.

For clarification purposes, the sections of the No-fault Act which have been and will be referred to within this discussion are §§103, 202, 205 and 301 omitted.

If the facts are such that plaintiff’s economic losses exceed the basic-loss benefits of section 202 paid to plaintiff by his carrier, then the tortfeasor pursuant to §301(a)(4) does remain liable, but only to the extent that the losses are not covered. See Erie Ins. Exchange v. Fleagle, 285 Pa. Super. 310, 427 A.2d 651 (1981); Snavely v. Brooks, 12 D.&C.3d 222 (1979). Medical expenses are included in the phrase “allowable expense.” Section 103. This cause of action does not exist, though, until the [579]*579victim is not compensated for basic-loss benefits due to limitations on such payments in accordance with section 202. See Bond v. Gallen, 292 Pa. Super. 207, 437 A.2d 7 (1981).

Other than this exception, the cases state generally that the No-fault Act precludes a tort action for the recovery of medical expenses. See Burke v. Elliot, 606 F.2d 375 (3rd Cir. 1979); Martin v. Soblotney, 296 Pa. Super. 145, 442 A.2d 700 (1982); Zagari v. Grakla, 264 Pa. Super. 239, 399 A.2d 775 (1979); Sturtz, et al. v. Ludy, et al., 38 Somerset L.J. 125, 15 D.&C.2d 289 (1979).

O’Sullivan v. Ruszecki, 2 D.&C.3d 276 (1977), proposes that if a plaintiff fits within any of the exceptions listed in section 301 permitting tort action, then that plaintiff is also entitled to recover medical damages from the tortfeasor. As O’Sullivan preceded the above-cited cases, its reasoning cannot now govern. Compare Theal v. Confer, 7 D.&C.3d 614 (1978), where the court expressly disagreed. with the O’Sullivan ruling as to the recovery of medical expenses. Therefore, defendant tortfeasor may only be liable for medical expenses to minor child if the expenses exceed the §202 basic-loss benefits permitted to be recovered by plaintiff. In any event, defendants cannot be liable for more than the excess.

This same conclusion is reached for future medical expenses as well. Sturtz et al. v. Ludy et al., supra, dealt with this problem by citing the Pennsylvania No-fault Motor Vehicle Insurance Act (Pennsylvania Trial Lawyers Association, 1979) 1:7.1, pages 74-75:

“In accordance with sections 103 and 202 of the act, a victim, meaning an individual who suffers injury arising out of the maintenance or use of a motor vehicle, is entitled to payment or reimbursement [580]*580of all reasonable charges for or the reasonable value of medical care and treatment, medical and vocational rehabilitation services, and funeral expenses.' Although there is a máximum limitation of $1,500 on funeral and burial expenses, all other reasonable and necessary, medical expenses are unlimited in amount. A claimant is entitled, for the remainder of his life to all such expenses for treatment and care which are casually [causally] related to his injury.”

The court in Sturtz went on to suggest that future medical expenses are treated in the same manner as medipal expenses incurred. Thus, a tort action cannot generally stand to recover these expenses.

No authority has been found, and defendants’ counsel did not cite any, that would prevent a minor child from recovering’ loss of wages. Section 301(a)(4) of the No-fault Act refers to § 202(b) as an exception to tort-liability abolition. Section 202(b) provides for work-loss benefits.

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Related

Heifetz v. Philadelphia State Hospital
393 A.2d 1160 (Supreme Court of Pennsylvania, 1978)
Martin v. Soblotney
442 A.2d 700 (Superior Court of Pennsylvania, 1982)
Erie Insurance Exchange v. Fleagle
427 A.2d 651 (Superior Court of Pennsylvania, 1981)
Zagari v. Gralka
399 A.2d 755 (Superior Court of Pennsylvania, 1979)
Smith v. Brown
423 A.2d 743 (Superior Court of Pennsylvania, 1980)
Bond v. Gallen
437 A.2d 7 (Superior Court of Pennsylvania, 1982)
Harvey v. Hansen
445 A.2d 1228 (Superior Court of Pennsylvania, 1982)
Phelps v. Red Star Express Lines
460 F. Supp. 158 (W.D. Pennsylvania, 1978)
Hudock v. Donegal Mutual Insurance
264 A.2d 668 (Supreme Court of Pennsylvania, 1970)
Marinelli v. Montour Railroad
420 A.2d 603 (Superior Court of Pennsylvania, 1980)
Pike County Hotels Corp. v. Kiefer
396 A.2d 677 (Superior Court of Pennsylvania, 1978)
Walter v. COMMONWEALTH
373 A.2d 771 (Commonwealth Court of Pennsylvania, 1977)
FLICKINGER ESTATE v. Ritsky
305 A.2d 40 (Supreme Court of Pennsylvania, 1973)
Hermann v. North Pennsylvania Railroad
113 A. 828 (Supreme Court of Pennsylvania, 1921)
Scranton Axle & Spring Co. v. Scranton Board of Trade
113 A. 838 (Supreme Court of Pennsylvania, 1921)
Lengle v. North Lebanon Township
117 A. 403 (Supreme Court of Pennsylvania, 1922)
Buckley & Co. v. Commonwealth
382 A.2d 1298 (Commonwealth Court of Pennsylvania, 1978)

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Bluebook (online)
38 Pa. D. & C.3d 575, 1982 Pa. Dist. & Cnty. Dec. LEXIS 18, Counsel Stack Legal Research, https://law.counselstack.com/opinion/demarco-v-napora-pactcomplsomers-1982.