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EBERHART ET UX. v. NATIONWIDE MUTUAL INSURANCE COMPANY (03/29/76)

decided: March 29, 1976.

EBERHART ET UX., APPELLANTS,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY



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.

COUNSEL

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.

Author: Jacobs

[ 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 ...


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