Lawrence v. Heritage Nissan Inc.

13 Pa. D. & C.4th 566, 1992 Pa. Dist. & Cnty. Dec. LEXIS 378
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJanuary 28, 1992
Docketno. 87-15445
StatusPublished

This text of 13 Pa. D. & C.4th 566 (Lawrence v. Heritage Nissan Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lawrence v. Heritage Nissan Inc., 13 Pa. D. & C.4th 566, 1992 Pa. Dist. & Cnty. Dec. LEXIS 378 (Pa. Super. Ct. 1992).

Opinion

BROWN, J.,

On September 15, 1986, the plaintiff, Robert D. Lawrence Jr., bought a new 1986 Nissan “King Cab” pick-up truck from the defendant, Heritage Nissan Inc. He signed two contracts, a “Pennsylvania Motor Vehicle Installment Sales Contract” and an “Agreement to Provide Insurance.”

Both contracts state that the truck was insured by Nationwide Insurance Company policy number “6 489 3215 836” but according to the plaintiff, this insurance information was added after he executed both documents [567]*567and without his knowledge or consent. He testified in deposition that he only agreed to sign the blank “Agreement to Provide Insurance” form after the salesman at Heritage Nissan explained it was an agreement to buy motor vehicle insurance in the future.

Nevertheless Lawrence knew the Commonwealth of Pennsylvania requires proof of insurance coverage before it will register a motor vehicle. He states he planned to buy insurance within one to two weeks after the purchase.

Sometime after 4 a.m. on September 20, 1986, five days after he took possession of the truck, Lawrence was involved in a one car accident which completely destroyed the vehicle, a light pole and a traffic signal. The truck was not insured.

Tredyffrin Township Police cited him for (1) driving under the influence of alcohol, (2) failing to drive on the right side of the roadway, (3) failing to drive at a safe speed, (4) driving while operating privileges were suspended, and (5) driving under a foreign license during suspension or revocation. A blood sample drawn one hour after the accident revealed a blood alcohol concentration of 0.20 percent. He later pled guilty in Chester County to driving under the influence.

On October 21,1987, he filed a two count complaint against Heritage Nissan Inc. and the Commonwealth of Pennsylvania, Department of Transportation, Bureau of Motor Vehicles seeking money damages.1 Count one alleges that the defendant breached its statutory and common law duty to ascertain that the person to [568]*568whom a new vehicle is sold and registered is insured pursuant to Pennsylvania’s Motor Vehicle Financial Responsibility Act, 67 Pa. Code §43.5.

Count two alleges that defendant’s conduct was an unfair and deceptive act under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201, et seq.

On July 12,1991, we granted Heritage Nissan Inc.’s motion for summary judgment and dismissed the complaint; hence this appeal.

Pennsylvania Rule of Civil Procedure §1035 provides that summary judgment may be entered if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Helinek v. Helinek, 337 Pa. Super. 497, 499, 487 A.2d 369, 371 (1985).

In order to determine whether summary judgment is properly entered any facts contested in the record must be viewed in the light most favorable to the non-moving party. Spain v. Vicente, 315 Pa. Super. 135, 139, 461 A.2d 833, 835 (1983).2

In his §1925(b) statement of matters complained of on appeal plaintiff alleges that this court erroneously granted defendant’s motion for summary judgment be[569]*569cause his complaint was based upon the defendant’s failure to comply with the Motor Vehicle Financial Responsibility Act, 67 Pa. Code §43.5(d). Lieberman v. Abafs Auto Tag Service, 344 Pa. Super. 350, 496 A.2d 831 (1985) and Lyngarkos v. PennDOT, 67 Pa. Commw. 121, 426 A.2d 1195 (1981). He makes no mention of the Unfair Trade Practices claim.

The Pennsylvania Code, chapter 67, §43.5(d) implementing the Motor Vehicle Responsibility Act, Issuance of temporary registration cards, states:

“(d) Duty to examine documents — The duty to examine documents shall include the following:

“(1) Before issuing a temporary registration card, the issuing agent shall examine all documents necessary to the transaction.

“(2) A temporary registration card may not be issued unless the following items are found to be in order:

“(i) Insurance information.

“(A) Except as provided in clause (B) or (C), check to determine that the vehicle is insured by examining one of the following documents covering the subject vehicle....

“(I) An identification card as required in Pa. Code Chapter 67 Subchapter B (relating to evidence of financial responsibility).

“(II) The declaration page of an insurance policy.

“(Ill) A valid binder of insurance.

“(TV) A copy of an application to the Pennsylvania Automobile Insurance Plan.”

Plaintiff’s counsel argues that if the salesman at Heritage Nissan had fully complied with 67 Pa. Code §43.5, [570]*570he would have determined that the plaintiff lacked insurance, he would not have been able to buy the pick-up truck and the accident would not have occurred. According to him, Heritage Nissan’s failure to ascertain that Lawrence was not insured makes it negligent per se.

In support of this position plaintiff cites Lyngarkos v. PennDOT, 57 Pa. Commw. 121, 426 A.2d 1195 (1981), in which the Commonwealth Court held that a passenger, Lyngarkos, injured in an out-of-state accident, had a cause of action against the automobile dealer who issued the car’s owner a temporary registration card without first securing proof of no-fault insurance. Because neither the passenger nor the vehicle in which he was injured was insured, and because section 301(a)(1) of the No-fault Act, 40 P.S. §1009.301(a)(1) (repealed), did not apply to injuries in accidents occurring outside Pennsylvania, Lyngarkos was unable to collect no-fault insurance benefits.

The Lyngarkos court held that the dealer’s failure to ascertain that the car’s owner had the required no-fault insurance allowed the car to be operated on public roads and prevented Lyngarkos from recovering compensation under the No-fault Act. Id., 57 Pa. Commw. at 128, 426 A.2d at 1200. The court, however, specified that this “suit is not based on the events of the accident in which Lyngarkos was injured but on the fact that MacKay failed in its statutory duty to create an insurer who would pay the basic loss benefits provided by the No-fault Act. Section 102 of the No-Fault Act says that its purpose is to provide a better system of compensating automobile accident victims and their survivors by furnishing basic benefits and eliminating the need to prove fault in an accident. This suit is not [571]*571concerned with fault in an accident and it is brought by a person who complains that others have failed in their statutory duty to provide him with benefits.” Id., 57 Pa. Commw. at 128, 424 A.2d at 1199.

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Related

Lieberman v. Abat's Auto Tag Service, Inc.
496 A.2d 831 (Supreme Court of Pennsylvania, 1985)
Helinek v. Helinek
487 A.2d 369 (Supreme Court of Pennsylvania, 1985)
Spain v. Vicente
461 A.2d 833 (Supreme Court of Pennsylvania, 1983)
Lyngarkos v. Commonwealth
426 A.2d 1195 (Commonwealth Court of Pennsylvania, 1981)
Appeal of Chartiers Valley School District
447 A.2d 317 (Commonwealth Court of Pennsylvania, 1982)

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Bluebook (online)
13 Pa. D. & C.4th 566, 1992 Pa. Dist. & Cnty. Dec. LEXIS 378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-v-heritage-nissan-inc-pactcomplmontgo-1992.