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RUSKA v. PHILADELPHIA LIFE INSURANCE COMPANY (11/12/63)

November 12, 1963

RUSKA
v.
PHILADELPHIA LIFE INSURANCE COMPANY, APPELLANT.



Appeal, No. 183, March T., 1963, from judgment of Court of Common Pleas of Erie County, Sept. T., 1962, No. 206, in case of Margaret D. Ruska v. Philadelphia Life Insurance Company, Fraternal Order of Police, Haas Memorial Lodge No. 7 et al. Judgment affirmed.

COUNSEL

William J. Kelly, with him Elderkin, Martin and Kelly, for appellant.

John A. Spaeder, with him Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellee.

Before Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Jones

[ 412 Pa. Page 419]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

Everett W. Ruska (Ruska) died August 20, 1961 at the age of 58 years. Although retired from the police department of the City of Erie since May 1, 1957, he had retained his membership in Haas Memorial Lodge No. 7, Fraternal Order of Police (Lodge) until the date of his death. As a member of that Lodge, he was entitled to, and did, participate in a plan of group life insurance the terms of which were contained in a group policy issued to the Lodge by Philadelphia Life Insurance Company (insurer). Ruska's coverage under that policy was evidenced by a certificate of insurance issued by the insurer which certified that he was insured for life insurance in the amount of $6,600. The

[ 412 Pa. Page 420]

    beneficiary named in that insurance certificate - Ruska's wife, Margaret D. Ruska - made claim in due course for $6,600 but the insurer refused to pay more than $3,300, claiming that Ruska was entitled only to that amount under the policy.

Mrs. Ruska then instituted this assumpsit action in the Court of Common Pleas of Erie County against the insurer, the Lodge and one Armand J. Chimenti, who at all relevant times was both the agent of the insurer with respect to the policy and secretary of the Lodge's insurance fund. The defendants filed individual answers and, upon the closing of the pleadings, each filed a motion for judgment on the pleadings. The court below entered judgment in favor of the Lodge and Chimenti, but, on the insurer's motion for judgment, entered judgment not in favor of the insurer but in favor of Mrs. Ruska in the amount of $6,600 with interest. From the entry of such judgment the insurer appeals.

The insurer, conceding the power of the court below to enter judgment on the pleadings against it although it was the party who sought judgment (Boron v. Smith, 380 Pa. 98, 102, 110 A.2d 169; Knecht v. Medical Service Ass'n., 186 Pa. Superior Ct. 456, 459, 143 A.2d 820; Pa. R.C.P. 1034(b)), complains only that, when the court below was considering the entry of judgment against it, it was not given the benefit of inferences to be drawn from the pleadings and that not all the averments of fact in its answer were accepted as true, citing Toff v. Vlahakis, 380 Pa. 512, 513, 112 A.2d 340. Our examination of the opinion of the court below leads us to an opposite conclusion and we are of the opinion that the answer does not present a meritorious defense.

The gist of the insurer's defense is a reliance on the provisions of the policy, a copy of which was attached to the answer. Our examination of that policy, and the ...


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