Brown v. Southeastern Pennsylvania Transportation Authority , 1978 Pa. Dist. & Cnty. Dec. LEXIS 409 ( 1978 )

GELFAND, J.,

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

Plaintiffs claim was commenced by service of a complaint in assumpsit, in response to which defendant filed an answer denying all essential facts which plaintiff must prove in order to recover. Subsequently, plaintiff as petitioner brought this petition seeking benefits under the No-fault Act, to which no answer was filed, but in connection with which defendant-respondent did present argument on the return day.

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 either complaint or 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).

However, plaintiff herein has utilized both a complaint and a petition — a procedure which is duplicative as well as confusing. It is our view that in pursuing basic loss benefits the claimant may proceed by either complaint or petition, but not by both at the same time.

Accordingly, this court enters the following

ORDER

And now, May 8, 1978, this court hereby orders and decrees:

1. Plaintiff shall withdraw either her complaint or petition by appropriate praecipe filed with the prothonotary;

2. If, in accordance with paragraph 1 hereof, plaintiff chooses to withdraw her complaint and proceed by petition, defendant shall have leave to file an answer to said petition nunc pro tunc within 15 days of service of notice thereof;

3. If plaintiff chooses to proceed by petition, and defendant files an answer in compliance with paragraph 2 hereof, the parties shall have leave to proceed with depositions in connection herewith, and all such depositions must be completed within 45 days of the date of filing of said answer. 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; and

4. In the event plaintiff chooses to withdraw her petition and proceed by complaint, the matter will proceed in accordance with the appropriate rules of court pertaining thereto.