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LYNN WAGNER MYERS v. USAA CASUALTY INSURANCE COMPANY (04/23/82)

filed: April 23, 1982.

LYNN WAGNER MYERS, CHARLIANN BAKER AND FLORENCE WIMBISH, APPELLANTS,
v.
USAA CASUALTY INSURANCE COMPANY



No. 1927 Philadelphia, 1980, Appeal from the Order of Court of Common Pleas, Civil Division, of Philadelphia County, at No. 2247 October Term 1979.

COUNSEL

Joseph Mellace, Philadelphia, for appellants.

Sharon M. Reiss, Philadelphia, for appellee.

Cercone, President Judge, and Wickersham and Brosky, JJ.

Author: Wickersham

[ 298 Pa. Super. Page 368]

On October 15, 1979, a complaint in assumpsit and trespass was filed in the Court of Common Pleas of Philadelphia County on behalf of appellants*fn1 against appellee USAA Casualty Insurance Company. The complaint alleged that on October 24, 1975, almost four years previous to the filing of the complaint, plaintiff Lynn Wagner Myers was operating a motor vehicle in the city of Philadelphia which vehicle was involved in an accident with another motor vehicle resulting in personal injuries to her. The complaint included personal injury damage claims for plaintiff Charliann Baker and plaintiff Florence Wimbish, who were passengers in the vehicle operated by Lynn Wagner Myers. As to all three plaintiffs, the complaint sought punitive damages on the basis that USAA Casualty Insurance Company had allegedly acted willfully, intentionally, wantonly and recklessly in the handling of their claims. The defendant insurance company was identified in the complaint as the company which insured the motor vehicle involved in the accident and operated by Lynn Wagner Myers under a policy of insurance issued to Florence Wimbish. The complaint alleged further that the defendant had refused to make payment of medical bills, lost wages, impairment of earning capacity and loss of ability to work, incurred by the three plaintiffs, and finally,

[ 298 Pa. Super. Page 369]

    that it was defendant's obligation to pay these sums under the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn2

Preliminary objections were filed on behalf of USAA Casualty Insurance Company attacking those counts of the complaint seeking punitive damages and further, by way of demurrer, raising the defense that section 1009.106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act provides that an action may be commenced not later than two years after the date of the accident.*fn3

Subsequently, plaintiffs filed an amended complaint in trespass and assumpsit, which amended complaint expanded somewhat the allegations relating to punitive damages. Preliminary objections were again filed on behalf of the defendant of the same nature as before.

In an opinion and order dated July 29, 1980, the Honorable Edward B. Rosenberg ordered that plaintiffs' complaint be stricken with prejudice. This appeal followed.*fn4

[ 298 Pa. Super. Page 370]

Turning first to the punitive damage issue, this has been recently settled by our supreme court in Smith v. Harleysville, 494 Pa. 515, 431 A.2d 974 (1981) in ...


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