Matthew J. Broderick, Philadelphia, for appellant.
Francis E. Shields, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman and Cercone, JJ., join.
[ 243 Pa. Super. Page 154]
This case comes to us on appeal from the Court of Common Pleas of Philadelphia, Civil Law Division, and involves an appeal from the court's granting of preliminary objections in the nature of a demurrer in favor of the defendant-appellee.
Appellant-plaintiff ("Girard") initiated an action in assumpsit against appellee-defendant, Life Insurance Company of North America ("LINA") on December 3, 1974, alleging in its complaint that four group creditor life insurance policies were issued by LINA to Girard on August 1, 1959, August 14, 1959, June 1, 1960 and November 1, 1968 and that certain rebates on such policies were due to Girard pursuant to the insurance contract's provisions. Each of the policies was renewed annually until June 30, 1973 when three were terminated and August 31, 1973 when the fourth was terminated.
One policy contained the following provision regarding the issue in the case:
"At the end of each policy year, the Company [LINA] may allow to the Creditor [Girard] an experience credit in such amount, if any, as may be determined in accordance with an experience rating plan which the Company then has in effect. The amount of each such experience credit, if any, shall be paid in cash to the Creditor, or upon request of the Creditor, shall be applied against the payment of any premium or premiums." (Emphasis ours.)
The other three policies contain the following language:
"At the end of the first policy year, and on any premium due date thereafter but not more than once in any twelve month period, premiums shall be subject to such changes as the Company [LINA] may make. Any reduction in the premium rates so made for any policy year may also be made retroactive for the previous year and, in which event, a refund of premium
[ 243 Pa. Super. Page 155]
for that year shall be made to the Creditor [Girard]. No increase in premium rates shall be ...