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BONFITTO v. NATIONWIDE MUTUAL INSURANCE COMPANY. (06/15/61)

June 15, 1961

BONFITTO, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.



Appeal, No. 14, Oct. T., 1961, from order of Court of Common Pleas of Northampton County, June T., 1959, No. 54, in case of Marco Bonfitto v. Nationwide Mutual Insurance Company et al. Judgment affirmed.

COUNSEL

William C. Cassebaum, with him Thomas Arcorace, for appellant.

James B. McGiffert, with him Fackenthal, Teel & McGiffert, for insurance company, appellee.

Edward J. Danser, with him Danswer & Brose, for individual appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Wright

[ 195 Pa. Super. Page 547]

OPINION BY WRIGHT, J.

This is an appeal from the entry of judgment n.o.v. in favor of the defendants after a verdict for the plaintiff in an assumpsit action. The factual situation appears in the following excerpt from the opinion of Judge WOODRING for the court en banc:

"The facts of the case begin with the three Bonfitto brothers. On March 20, 1952, Joseph, while driving Antonio's car, allegedly backed over Marco's foot. Antonio was insured by Farm Bureau Insurance Company, now known as Nationwide Insurance Company. Shortly after the accident in the spring of 1952, Edgar Bell, an adjuster for Nationwide visited Marco and allegedly told him not to worry, that his Company would pay for Marco's loss up to $10,000.00. Bell also visited Marco in the summer of 1952 and in November of 1952, at which latter time he again allegedly assured Marco that the Company would pay and that Marco should come to Nationwide's office when he had been discharged by his doctor. The doctor, an orthopedic surgeon of unquestioned integrity and repute, testified that he never discharged Marco. The latter, however, testified that he was discharged on June 3, 1954 and on the same day went to see Bell. Bell refused to make any payment and pointed out that the period of the statute of limitations had expired on March 20, 1954.

"On September 23, 1954, Marco brought an action in trespass against Antonio and Joseph for the injuries sustained. Antonio and Joseph pleaded under New

[ 195 Pa. Super. Page 548]

Matter that the two-year statute of limitations barred the action. Marco replied that a representative of Antonio and Joseph had promised him that he would be compensated and that Marco, relying on said promise, did not institute suit, and that Antonio and Joseph should not be permitted to employ the defense of the statute of limitations. When the case was called for trial the parties agreed that the foregoing issue should be preliminarily heard and determined by the judge on a motion for judgment on the pleadings.

"Testimony was taken and the question was argued. The judge found that Bell had never committed the Company to pay anything and had not misrepresented the law of the statute of limitations; and, further, that it was the duty of Marco (under the circumstances) to have properly informed himself and to have instituted suit within the statutory period. Bonfitto v. Bonfitto, 10 Pa. D. & C.2d 598. This judgment was affirmed by the Supreme Court per curiam on the trial judge's opinion. 391 Pa. 187, 137 A.2d 277.

"In May, 1959, more than seven years after the accident, Marco brought suit against Nationwide and Bell (1) in assumpsit, on the basis of a promissory estoppel, and in the alternate (2) in trespass, against Bell for deceit. At a pre-trial conference before WILLIAM G. BARTHOLD, P.J., plaintiff announced that he would not pursue this latter claim. Defendants pleaded under New Matter the six-year statute of limitations. The court submitted the case to the jury and instructed it that the basic issue was whether Bell made the promise. The jury found for Marco in the sum of $3,564.00. Defendants have ...


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