Simonds v. Safeguard Mutual Insurance

GELFAND, J.,

— This matter comes before the court upon plaintiff’s (petitioner) petition for payment of no-fault benefits, interest and counsel fees pursuant to the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. §1009.101 et seq.

Defendant (respondent) filed an answer and new matter, together with amotion to dismiss plaintiffs petition, which question the propriety of this type of claim being instituted by petition, and also raise factual issues as to whether there exists obligation to pay plaintiff any basic loss benefits, interest and attorney’s fees.

It is our view that the No-fault Act does permit the institution of claims for basic loss benefits, interest and attorney’s fees by petition, and we have so held in other instances dealing with this issue. See Long v. Rockwood Ins. Co., 5 D. & C. 3d. 457 (1978). Accordingly, we find that the claim involved in the herein matter is properly before us.

However, we find that we are unable to make a final determination as to the existence of any obligation to pay basic loss benefits, interest and attorney’s fees since respondent raises issues of fact which cannot be resolved without the aid of depositions.

Accordingly, after considering plaintiff’s petition, defendant’s motion, together with responsive pleadings, memoranda and argument in connection therewith, this court makes the following

ORDER

And now, May 5, 1978, this court hereby orders and decrees that:

1. Plaintiffs petition is properly before us;

2. Defendant’s motion to dismiss is denied; and

*469 3. Leave is granted for the parties to take depositions in connection herewith, and all such depositions must be completed within 45 days hereof. At the end of that time either party may file a praecipe with the clerk of motion court ordering the cause for argument; and, in the event no depositions are taken regarding disputed issues of fact, any averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted.