August 21, 1984
IDA SUNBURY, APPELLANT
HOME INSURANCE COMPANY
No. 02569 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 3517 October Term, 1978.
Before Olszewski, Popovich and Cercone, JJ.
This is an appeal by appellant, Ida Sunbury, from an order of the Court of Common Pleas of Philadelphia County which granted appellee's motion for summary judgment. We affirm.
On October 20, 1978, appellant filed an action for recovery of no-fault benefits from appellee, Home Insurance Company, for personal injuries sustained in an automobile accident which occurred on October 17, 1975. Appellee argued below that since appellant submitted a bill on November 4, 1975, which was promptly paid by appellee, but failed to submit subsequent bills within two years, appellant's cause of action falls squarely within the latter provision of 40 P.S. § 1009.106(c)(1)*fn1 which provides
"If no-faultbenefits have been paid for loss arising otherwise than from death, an action for further benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits."
In the alternative, appellee contended that even if appellant did not file a claim in November of 1975, the action would still be barred because the period of limitation begins on the date of the accident or October 17, 1975, and 40 P.S. § 1009.106(c)(1) also provides that an alleged victim seeking to recover a "loss arising otherwise than from death" must commence an action against a no-fault carrier
"not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not latter than four years after the accident, whichever is earlier."
Appellant claims that she submitted bills for the first time on August 11, 1978, at which time she submitted bills in the following amounts and bearing the following dates:
10/17/75 Montgomery Hospital $74.00
11/6-11/75 Sacred Heart Hospital 498.00
7/20/76 Leonard Klinghoffer, M.D. 75.00
7/20/76 X-ray Associates 40.00
She claims appellee refused to make payment on those bills and that her action was timely since the limitations period began to run on the date that the insurer refused to honor the claim. She cites Myers v. U.S.A.A.Casualty Insurance Co., 298 Pa. Super. 366, 444 A.2d 1217 (1982).*fn2
Summary judgment is to be granted only in the clearest of cases, where the right is clear and free from doubt. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). There must be "no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fidelibus v. State Auto Insurance Assoc., Pa. Super. , 461 A.2d 1309, 1310 (1983).
"In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party's pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom."
Rybas v. Wapner, Pa. Super. , 457 A.2d 108 (1983).
In granting summary judgment, the lower court stated
"It is further ordered that defendant's Motion for Summary Judgment is granted, it being the opinion of this Court that the matter is controlled by Platts v. Government Employees Insurance Co., 301 Pa. Super. 379, 447 A.2d 1017 (1982)."
In Platts, plaintiff submitted claims for medical loss and work loss to her insurer immediately following an accident. All of her claims were honored, and the last payment was made on February 25, 1977. She next submitted claims on July 10, 1979. Summary judgment was entered in favor of the insurer on the ground that § 106(c)(1) of the No-fault Act barred the action since more than two years had elapsed since the last payment of benefits. This court affirmed.
Appellee submits a cancelled check showing that payment was made to Montgomery Hospital on behalf of appellant in November of 1975. On appeal, appellant does not assert that such claim was not paid nor does she allege fraud but instead asserts that her rights may not be abrogated without notification to her of the payment. The clear language of the Act is "If no-fault benefits have been paid " (emphasis added)
"We, of course, may not disregard the clear language of the statute in order to arrive at a conclusion that may be in keeping with the spirit of the Act."
Fidelibus v. State Auto Insurance Assoc., 461 A.2d at 1311. Moreover,
"under the law of Pennsylvania, it is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute the suit within the prescribed statutory period . . . . Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute . . ."
Joyce v. Mankham, Pa. Super. , 465 A.2d 696, 700 (1983), Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267, 269 (1968).
There is no genuine issue as to any material fact.
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading but his response, by affidavits or as otherwise provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."
Marchese v. Marchese, 457 Pa. 625, 628, 326 A.2d 321, 322 (1974).
Since no-fault benefits had been paid for a loss reflected by a bill from Montgomery Hospital which was paid by appellee in November of 1975, the instant action is barred by 40 P.S. § 1009.106(c)(1). Platts v. GEICO, supra. Accordingly, we affirm the order granting summary judgment in favor of appellee, Home Insurance Company.