No. 523 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Philadelphia County at (Trial Division, Law) No. 1852 August Term, 1975.
Alvin M. Chanin, Philadelphia, for appellant.
Jonathan Wheeler, Philadelphia, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion in which Price, J., joins. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
[ 264 Pa. Super. Page 158]
This is an action in assumpsit against plaintiff's insurer for losses to plaintiff occurring on August 4th or 5th, 1974. The policy was dated in July, 1974, but admittedly not
[ 264 Pa. Super. Page 159]
delivered to plaintiff until October or November 1974. The loss was reported to the defendant very promptly after it occurred, but suit was not filed until August 8, 1975, more than one year after the loss. The parties admit that the policy provides that any action against defendant must be commenced within twelve months of the date of loss; but plaintiff contends nevertheless that this provision of the policy does not apply to this case because:
1. The policy was not delivered to plaintiff until October or November 1974;
2. The defendant's agent, one Rowland, advised plaintiff he was covered for the loss; and
3. Defendant did not deny the claim until January 29, 1975.*fn1
The above stated circumstances were reasonably established through the pleadings and depositions of plaintiff and the agent Rowland. Defendant filed a motion for summary judgment which the lower court granted. In her opinion, Judge Forer stated that she was "bound by precedent [ Lardas v. Underwriters Insurance Co., 426 Pa. 47, 231 A.2d 740 (1967)], and therefore obliged to enter summary judgment in favor of defendant."
It may be that the eventual result in this case will be in favor of defendant, but we must reverse and remand. We believe that the record is not so clear and undisputed as to permit entry of summary judgment as a matter of ...