No. 326 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 2992 November Term, 1981.
Ronald L. Wolf, Philadelphia, for appellants.
Louise Herzl-Betz, Philadelphia, for appellee.
Spaeth, President Judge, and Montemuro and Popovich, JJ.
[ 324 Pa. Super. Page 317]
This is an appeal from the January 13, 1982 Order of the Court of Common Pleas of Philadelphia County (per Judge Lord), sustaining appellee's, United Services Automobile Association's, preliminary objections and entering judgment for the appellee and against the appellants, Mitchell S. & Rhea R. Greenspan. We affirm.
The standard for reviewing an order sustaining preliminary objections in the nature of a demurrer, which is
[ 324 Pa. Super. Page 318]
applicable to the case at bar, was reiterated by this Court in Rose v. Wissinger, 294 Pa. Super. 265, 270, 439 A.2d 1193, 1196 (1982):
It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.
In compliance therewith, we observe that appellants filed a complaint in trespass and assumpsit seeking "delay damages" from the appellee under Pa.R.Civ.P. 238. In pertinent part, the appellants alleged in their complaint that:
4. On or about August 29, 1979, plaintiff Mitchell S. Greenspan was severely injured while driving his automobile westbound on Bryn Mawr Avenue in Radnor Township, Delaware County, Pennsylvania, when he was struck by a stolen automobile.
5. At the time of the accident the driver of the striking vehicle was uninsured.
6. At the time of the accident plaintiffs were insured under an automobile liability policy with United Services Automobile Association which insurance contract provided for, inter alia, uninsured motorist protection in the amount of $300,000.00 per insured vehicle, or a total of $600,000.00. (A true and correct copy of the face sheet of the said policy is attached hereto and labeled Exhibit "A").
[ 324 Pa. Super. Page 3197]
. United Services Automobile Association was given written notice of the accident within two days thereof.
8. United Services Automobile Association was formally notified of plaintiffs' uninsured motorist claim within one year of the accident.
9. Pursuant to applicable provisions of the said contract, uninsured motorist proceedings were conducted before a panel of arbitrators who issued an award in favor of plaintiffs on September 18, 1981 in the amount of $460,000.00. (A true and correct copy of the arbitrators' award is attached hereto and labeled Exhibit "B").
10. It was recognized by both parties that the arbitrators did not have the authority under Rule 238 to award damages for delay and, accordingly, the full amount of the award of arbitrators was paid to plaintiffs without prejudice to plaintiffs' right to proceed in a separate court action against defendant for damages for delay.
11. Pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure this Court [of Common Pleas] is authorized to award to the plaintiffs in an action seeking monetary relief for bodily injury damages for delay at ten (10%) percent per annum unless the defendant complies with subsection (e) of the said Rule.
12. On September 11, 1981, defendant made a written offer in the amount of $100,000.00 to settle plaintiffs' uninsured motorist claim. (A true and correct copy of the said settlement offer is attached hereto and labeled Exhibit "C").
13. No written offer to settle plaintiffs' uninsured motorist claim was made before the arbitration other than that which is contained in Exhibit "C".
14. The award of the arbitrators was in excess of 125% of defendant's settlement offer of September 11, 1981.
15. Defendant's settlement offer of September 11, 1981, failed to qualify defendant for any exemption from damages for ...