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JULIUS SCHREIBER & BERTHA v. PENNSYLVANIA LUMBERMAN'S MUTUAL INSURANCE COMPANY (04/30/82)

decided: April 30, 1982.

JULIUS SCHREIBER & BERTHA, H/W, APPELLANTS,
v.
PENNSYLVANIA LUMBERMAN'S MUTUAL INSURANCE COMPANY



No. 81-3-414, Appeal from the Order of the Superior Court, No. 1195 October Term, 1979, affirming the order of the Court of Common Pleas-Civil Division of Philadelphia County at No. 4789, January Term, 1978.

COUNSEL

Dennis L. Friedman, Philadelphia, for appellants.

David Sorin, Philadelphia, for appellees.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Flaherty, J., files a concurring opinion. Nix, J., files a dissenting opinion.

Author: Roberts

[ 498 Pa. Page 22]

OPINION OF THE COURT

Appellants Julius and Bertha Schreiber appeal from an order of the Superior Court affirming an order of the Court of Common Pleas of Philadelphia granting the motion of appellee Pennsylvania Lumberman's Mutual Insurance Company for judgment on the pleadings. Appellants' sole contention throughout these proceedings has been that the one-year limitation of suit provision contained in their policy of fire insurance should not bar appellants from bringing suit on the policy over two years and two months after their alleged loss unless appellee insurance company can demonstrate that it has been prejudiced by appellants' delay. We find this contention to be without merit and, accordingly, affirm.*fn*

On November 12, 1975, appellants allegedly lost certain items of personal property in an internal heater explosion.

[ 498 Pa. Page 23]

Appellants notified appellee insurance company of the loss on November 15, 1975, and on November 28, 1975, appellants delivered an accounting of this loss to appellee. On February 2, 1978, some twenty-six months later, appellants filed a complaint in assumpsit against appellee, alleging simply that appellants had provided appellee with a full accounting of their loss and that appellee had not reimbursed them as required by the insurance policy.

In its answer, appellee alleged that payment had been refused because appellants had "failed to prove the losses alleged" and "failed to adequately prove the damages alleged." In addition, by way of new matter, appellee contended that appellants' cause of action was barred by the one-year limitation of suit clause contained in the insurance policy.

Appellants did not answer this new matter, and on June 20, 1978, judgment on the pleadings was entered in favor of appellee. Appellants then filed a motion for reconsideration, which was granted. On September 12, 1978, appellants answered appellee's affirmative defense, alleging only that the one-year limitation of suit provision could not bar their suit because appellee had alleged no prejudice to itself from appellants' two-year delay. The trial court rejected this argument and again entered judgment on the pleadings for appellee. A unanimous panel of the Superior Court affirmed, and this Court granted allowance of appeal.

In Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), this Court held that a policyholder's failure to abide by a provision in an automobile insurance contract requiring timely notice of claims would not bar suit on the policy absent a showing of prejudice by the insurer. Appellants argue that Brakeman mandates a similar conclusion with regard to the statutory limitation of suit provision at issue here.

Contrary to appellants' assertion, the rationale of our decision in Brakeman is not applicable to the present case. In Brakeman, the insurer had chosen to include in its ...


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