No. 2487 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas, Trial Division-Law, of Philadelphia County, at No. 4136 January Term, 1979
Albert Schlessinger, Philadelphia, for appellant.
Joseph C. DeMaria, Philadelphia, for appellee.
Wickersham, Hoffman and Van der Voort, JJ.
[ 298 Pa. Super. Page 65]
This is an appeal from a dismissal with prejudice of a Complaint filed by the appellant under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009, on the ground that the appellant had not commenced her action within the time period allowed by Section 106(c)(1) of that Act. The appellant contends that this defense had been waived because not properly pleaded and, if properly pleaded, that it was misapplied in this case.
The automobile accident out of which the appellant's claim arose occurred on August 11, 1975, while appellant was driving an insured car of her employer on her employer's business. On August 18, 1975, appellant filed an application with the appellee for basic loss benefits for work loss under the No-Fault Motor Vehicle Insurance Policy of her employer. On November 20, 1975, the appellee paid the appellant $249.33 by check in discharge of her claim.
On January 24, 1979, appellant commenced the present action by a Summons in Assumpsit to recover further basic loss benefits for work loss under the No-Fault Act. Her Complaint was filed on March 5, 1979. In it she asserts that, as a result of the accident and resulting injuries, she sustained a further loss of employment income from March 10, 1976 through July 1, 1978, amounting to $1,035 per month, against which she credits Workmen's Compensation benefits received at the rate of $690 per month, resulting in a net loss claim of $9,401.
On March 21, 1979, the appellee filed its Answer to the Complaint, including under the heading of "New Matter" the defense that the Complaint had not been brought within the time permitted by Section 106(c)(1) of the No-Fault Act, paraphrasing the first sentence of the Section as applicable. The draftsman of the Answer was apparently unaware of the earlier payment of benefits.
The time limitation on actions to recover benefits are set out in the statute, 40 P.S. 1009.106(c)(1) as follows:
Section 106. Payment of claims for no-fault benefits
[ 298 Pa. Super. Page 66]
(c) Time limitations on actions to recover ...