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THOMASINE NORRIS v. EUGENE FRANCIS WOOD (12/14/84)

filed: December 14, 1984.

THOMASINE NORRIS, ADMINISTRATRIX OF THE ESTATE OF WILLIAM THOMAS NORRIS, DECEASED, AND THOMASINE NORRIS, IN HER OWN RIGHT, APPELLANT,
v.
EUGENE FRANCIS WOOD, PENNSYLVANIA ASSIGNED CLAIMS PLAN, EWO, INC., D/B/A "TALK OF THE TOWN" BAR, KAZIMIER ONICHIMOWSKI, EDWARD ONICHIMOWSKI AND MICHAEL C. IOVINE



No. 01046 Philadelphia 1983, Appeal of Thomasine Norris from the Judgment entered March 24, 1983, of the Court of Common Pleas, Civil Division, Law, for the County of Philadelphia at No. 1601, September Term, 1981.

COUNSEL

George J. O'Neill, Philadelphia, for appellant.

Charles L. Pelletreau, Philadelphia, for Wood, appellee.

Michael Saltzburg, Philadelphia, for Pa. Assigned, appellee.

Boris Shapiro, Philadelphia, for EWO, appellees.

Cirillo, Olszewski and Beck, JJ. Cirillo and Beck, JJ., concurred in the result.

Author: Olszewski

[ 336 Pa. Super. Page 308]

William Norris was fatally injured when the uninsured car he was driving was struck by a car driven by Eugene Wood in Philadelphia. His daughter, Thomasine, filed a claim with the Pennsylvania Assigned Claims Plan for work loss benefits and funeral expenses, on behalf of Mr. Norris' estate, and for survivor's benefits, on her own behalf. The Plan paid the estate $16,500 and Thomasine $5,000.

Thomasine then brought suit for uninsured motorist benefits against the Plan. In the same action, she claimed damages from Eugene Wood for negligence, and from "Talk of the Town" Bar for negligence. The Plan counterclaimed, alleging that since Thomasine was the owner of an uninsured vehicle, and the Plan had paid out money in connection with an accident involving that vehicle, the Plan was entitled under 40 P.S. ยง 1009.501 to recover the money paid from the uninsured vehicle's owner. The court ordered partial summary judgment for the Plan on its claim; appellant Thomasine Norris appeals the lower court's order.

Appellant contends that the order below, granting appellee partial summary judgment, is based on a constitutionally defective statute and should be reversed. Appellee contends that this Court cannot hear the arguments offered by appellant regarding the constitutionality of the No-Fault Act because appellant has waived them. Appellee points to Pa.R.Civ.P. 1032 and asserts that because no argument was

[ 336 Pa. Super. Page 309]

    advanced by appellant "in the pleadings," her argument is barred.

We note that the statute requires that an issue be raised "by preliminary objection, answer or reply." Pa.R.Civ.P. 1032. This is not the same as "in the pleadings." Since appellant first raised the constitutional issue in her answer to appellee's motion for partial summary judgment, see appellant's ...


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