dissenting:
I respectfully dissent from the majority opinion. I would affirm the order of the trial court on the basis that the car was “marital property”, and that the non-titled spouse is an owner under 75 Pa.C.S.A. § 1752(a)(3).
The majority argues that:
... mere indicia of ownership, i.e. usage or availability to the non-owning spouse or possession of keys to the vehicle, should not disqualify that spouse from participating under the Act if in fact there is no recognized property interest in the vehicle.
(Majority opinion at 125.) I cannot agree with this distinction. An automobile purchased during the marriage, titled in the name of one spouse, and available for the use of the other spouse is marital property. Marital property is “all property acquired by either party during the marriage.” 23 Pa.S.A. § 401(e). An adult member of a marital couple in which one spouse purchases a potentially dangerous vehicle must be held accountable for insuring that any damages resulting from the use of that vehicle are covered. When appellant put herself behind the wheel of the car, she put herself and others at risk. Requiring a showing that some “recognized property interest” exists opens the door to subversive methods of avoiding responsibility for damages resulting from property over which both spouses show apparent dominion.
This dissent is consistent with Ibarra v. Prudential Property & Casualty Co., 402 Pa.Super. 27, 585 A.2d 1119 (1991). In Ibarra, the automobile involved in the accident was not registered or titled to the woman driving the car and she was entitled to receive benefits under the Pennsyl*67vania Assigned Claims Plan. Unlike the instant case, however, the woman in Ibarra was estranged from her husband. The two people no longer held themselves out to the public as one unit, and the estranged wife would not be assumed to have free access to an automobile in her estranged husband’s possession. The estranged wife had no indicia of ownership; rather, she became like any other borrower and should not have suffered for the titled owner’s failure to insure the vehicle by virtue of their former united status.
Requiring a showing of actual property interest in a marital situation would defeat the purpose of 75 Pa.C.S.A. § 1752, which states:
(a) General rule.—A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirments:
... (3) Is not an owner of a motor vehicle required to be registered under Chapter 13 (relating to registration of vehicles).
75 Pa.C.S.A. § 1752(a)(3). I cannot agree with a holding that would potentially permit recovery to a spouse who supports the purchase of a vehicle and publicly shows all signs of ownership, but who fails to ensure the recovery of others put at risk by that spouse’s behavior. A showing of actual property interest is too intangible and subject to abuse. When property is purchased during the marriage and both spouses show indicia of ownership, these factors are enough to define both spouses as “owners” and to deny any recovery under the Assigned Claims Plan.
Accordingly, I dissent from the majority opinion. I would affirm the order granting appellee’s motion for summary judgment and dismissing appellant’s complaint.