Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division Law at April Term, 1975, No. 5329. No. 1956 October Term, 1975.
Joseph J. Carlin, Philadelphia, for appellants.
Paul N. Sandler, Philadelphia, for appellee.
Watkins, President Judge, and Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, concurs in the result.
[ 241 Pa. Super. Page 290]
Appellants contend that the lower court erred in sustaining appellee's preliminary objections in the nature of a demurrer.
Appellee, Insurance Placement Facility of Pennsylvania, issued a standard fire insurance and extended
[ 241 Pa. Super. Page 291]
coverage policy to appellant, Hazel Satchell, the owner of a building located at 2301 Lehigh Avenue in Philadelphia. Appellant, Provident Building & Loan Association, held a first mortgage on the premises and was designated in the insurance policy as the loss payee. The effective dates of the policy were February 19, 1971, to February 19, 1972. In April, 1975, appellants filed a complaint in assumpsit, alleging that on December 7, 1971, "an automobile was driven through the east wall of plaintiff's property," which caused damage in the amount of $3,883.00. Appellants attached Policy Number 873549 to their complaint.
Appellee did not file an answer to the complaint. Instead, appellee filed preliminary objections in the nature of a demurrer, alleging that the policy attached to appellants' complaint was incomplete. Appellee alleged that appellants failed to include page two of the standard policy issued, and that lines 157-161 of that page provided: "No suit or actions in this policy for the recovery of any claim shall be sustainable in any court of law or equity . . . unless commenced within twelve months next after the inception of the loss." Appellee attached a duplicate of the entire policy issued to appellants. Appellants did not respond to the preliminary objections and did not amend their complaint. They did, however, submit a brief to the lower court: the court sustained the preliminary objections on August 7, 1975, and dismissed the complaint.
Appellants' primary contention is that the contractual time limitation for commencement of suit cannot be raised at the preliminary objection stage. In support of their position, appellants make the following arguments: (1) contractual limitation of action must be pleaded as new matter pursuant to Rule 1030, Pa.R.C.P., because it is an affirmative defense; (2) even if appellee could file a demurrer, the preliminary objections actually filed were void as a "speaking demurrer"; (3) the preliminary
[ 241 Pa. Super. Page 292]
objections should not have been sustained because appellants were precluded by local rules from filing an answer; and (4) the complaint was improperly dismissed as to the mortgagee, regardless of the ...