No. 977 Philadelphia 1983, Appeal from the Order of April 5, 1983, in the Court of Common Pleas of Philadelphia County, Civil No. 3149, February Term, 1982.
Allen L. Feingold, Philadelphia, for appellants.
George S. Donze, Philadelphia, for appellees.
McEwen, Olszewski and Hoffman, JJ. McEwen, J., did not participate in the proceedings or decision of this case.
[ 336 Pa. Super. Page 375]
This appeal follows an order granting defendant's motion for judgment on the pleadings. The underlying action involves non-insureds' claims for uninsured motorist benefits. The question before us is to whom these benefits inure.
Appellants sustained injuries in an automobile accident on February 20, 1976. Then uninsured, they notified the Pennsylvania Assigned Claims Bureau, by letter dated November 29, 1977, of claims for "medical bills and lost wages." Appellee General Accident Group was assigned as servicing carrier for the claims.
On November 5, 1981, the Supreme Court rendered its decision in Tubner v. State Farm Mutual Ins. Co., 496 Pa. 215, 436 A.2d 621 (1981). The Court there held that an insurer designated to provide insurance coverage under the assigned claims plan of the No-Fault Motor Vehicle Insurance Act must pay not only basic loss benefits but also uninsured motorist benefits. Thirteen days after the Tubner decision, appellants notified General Accident Group of their uninsured motorist claims.
Appellee failed to honor those claims. On February 19, 1982, appellants filed a petition to appoint a neutral arbitrator. The Honorable Charles A. Lord, by order of March 29, 1982, denied appellants' petition but granted leave to file a complaint. Appellants responded with a complaint in assumpsit on April 29, 1982.
General Accident's preliminary objections were sustained in part and overruled in part. Appellee then filed an answer in which it raised the statute of limitations as an affirmative defense. Based on this defense, appellees filed a motion for judgment on the pleadings. The court, by order of April 5, 1983, granted the motion. This appeal follows.
Appellants assert a claim for uninsured motorist benefits under Tubner. The lower court assumed without deciding that Tubner did apply to this 1976 accident. It concluded,
[ 336 Pa. Super. Page 376]
however, that passage of time had barred the instant action. The court never made clear which statute of limitations applied. Appellants argue that, whatever the statute of limitations, the lower court erred in granting ...