No. 2979 October Term, 1978, Appeal from an Order of the Court of Common Pleas of Lancaster County, Civil Division at No. 134 June Term, 1977.
William C. Haynes, Lancaster, for appellants.
J. Michael Flanagan, Lancaster, for appellees.
Spaeth, Stranahan and Sugerman, JJ.*fn*
[ 288 Pa. Super. Page 181]
Plaintiffs, George T. Hess and Stella E. Hess, filed this action in trespass seeking damages arising from a collision on July 3, 1975 between a motor cycle driven by the plaintiff, George T. Hess, and an automobile driven by defendant, Arlene Evans. In their New Matter, defendants claim that plaintiffs are barred from maintaining this action because both plaintiffs voluntarily executed a release in favor of defendants and their insurance carrier.
Plaintiffs' reply alleges that the release is void because the plaintiff, George T. Hess, was ignorant of the nature of the instrument he signed and that the insurance agent took unfair advantages of plaintiffs' economic distress, acted in bad faith, and breached the agreement.
Written interrogatories submitted by the defendants were answered by the plaintiffs and one of the interrogatories contained the following information: "At the time plaintiffs signed the instrument (release to insurance company), they were under the impression that it was a partial and not a complete release . . . ." No further explanation was given as to what was meant by a partial release.
It is admitted by the parties that the plaintiffs received $3500.00 as consideration for the release and subsequently have received $5642.00 for lost wages and property damages. The plaintiff, George T. Hess, received $103.00 per week for 46 weeks for lost wages. In addition thereto, medical bills have been paid by the insurance company. There is outstanding, a medical bill in the sum of $337.50 which the insurance company has failed to pay.
At no time have the plaintiffs tendered back to defendant or the insurance company, any of the money paid to the plaintiffs as the result of this accident.
[ 288 Pa. Super. Page 182]
The lower court granted defendants' Motion for a Summary Judgment and plaintiffs have appealed.
The issue to be decided in this matter is a very narrow one. It is whether the failure to tender back the consideration received at the time the release was signed, and subsequent thereto, constitutes a ...