Appeal from judgment of Court of Common Pleas of Westmoreland County, No. 2825 of 1974, in case of Brad Eberhart and Debra Eberhart, his wife v. Nationwide Mutual Insurance Company, a corporation.
David J. Millstein, with him Millstein and Hoehler, for appellants.
Carl E. Fisher, with him Robinson, Fisher, Long & Rigone, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 238 Pa. Super. Page 560]
This is an appeal from the order of the court below granting the defendant-appellee's motion for judgment on the pleadings. When ruling on a defendant's motion for judgment on the pleadings, the complaint, the answer containing new matter, and the reply to new matter shall be considered.*fn1 Herman v. Stern, 419 Pa. 272, 276 n. 1, 213 A.2d 594, 596 n. 1 (1965). Further, as this Court stated in Kroiz v. Blumenfeld, 229 Pa. Superior Ct. 194, 197, 323 A.2d 339, 340 (1974):
"The standards for determining whether a judgment on the pleadings should be allowed are clear. . . . All of the opposing party's well pleaded facts must be accepted as true. Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966); Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). A judgment on the pleadings should be granted only when a case is free from doubt and a trial would be a fruitless exercise. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972)." (Emphasis in original).
Applying these standards to the instant case, we conclude that this was not a proper case for the entry of judgment on the pleadings in favor of the defendant.
[ 238 Pa. Super. Page 561]
The pleadings disclose a primary issue of fact which, when resolved in favor of the non-moving party, the plaintiffs-appellants, Kroiz v. Blumenfeld, supra, makes judgment on the pleadings inappropriate.
The facts as disclosed by the pleadings may be summarized as follows: The defendant issued an automobile insurance policy to the plaintiff Brad Eberhart; the policy taking effect on September 7, 1973. On or about May 31, 1974, the plaintiffs were injured in a one-car accident in Westmoreland County, as a result of which they incurred medical expenses. The plaintiffs made repeated demands upon the defendant for payment of these medical expenses; these demands were refused.
The plaintiffs filed a Complaint in Assumpsit in which they averred, inter alia :
"3. On or about September 7, 1973, Plaintiff Brad Eberhart purchased from Defendant a policy of automobile insurance (Policy No. 61P082-312), which policy, among other coverages, provided for payment of medical ...