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ROBERT J. AUGOSTINE v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY (12/31/84)

filed: December 31, 1984.

ROBERT J. AUGOSTINE, APPELLANT
v.
PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, A CORPORATION



No. 00295 Pittsburgh, 1983, Appeal from the Order entered February 14, 1983 in the Court of Common Pleas of Allegheny County, Civil, No. GD79-21607

COUNSEL

Ernest B. Orsatti, Pittsburgh, for appellant.

H. Fred Mercer, III, Pittsburgh, for appellee.

Brosky, Tamilia and Roberts, JJ.

Author: Roberts

[ 338 Pa. Super. Page 17]

Robert J. Augostine appeals an order granting summary judgment in favor of his no-fault insurer, appellee Pennsylvania National Mutual Casualty Insurance Co., on his claim for medical expenses and work loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. At issue on this appeal is whether appellant's claims were time-barred. We conclude that his claims were timely at least in part, and thus vacate and remand for further proceedings.

Reviewing the record in the light most favorable to appellant, as we are required to do on appeal from a grant of summary judgment, see Lane v. Schacht, 260 Pa. Super. 68, 74, 393 A.2d 1015, 1018 (1978) (en banc), we note the following facts. Appellant was injured while alighting from his employer's truck in the course of his employment on September 23, 1975. Appellant's unsuccessful prelitigation efforts to obtain payment from appellee culminated in a July 16, 1979 letter notifying appellee that he had retained counsel.

Appellant filed suit against appellee on August 9, 1979, and both parties moved for judgment on the pleadings. Appellee's motion was granted, but a panel of this Court reversed and remanded on grounds that the availability of workers' compensation did not preclude appellant from obtaining no-fault payments from his own carrier. See Augostine v. Pennsylvania National Mutual Casualty Insurance Co., 293 Pa. Super. 50, 437 A.2d 985 (1981).

Both parties subsequently filed motions for summary judgment, and appellee's motion was granted on February 14, 1983. The trial court believed that appellant's claim accrued upon "the refusal of [appellee] to entertain [appellant's] claim," and held the claim to be time-barred by section 106(c)(1) of the Act.

Section 106(c)(1) requires commencement of suit within two years of the date on which the victim "suffers the loss and either knows, or in the exercise of reasonable diligence

[ 338 Pa. Super. Page 18]

    should have known, that the loss was caused by the accident." 40 P.S. § 1009.106(c)(1). Appellant, relying upon this Court's decisions in Myers v. USAA Casualty Insurance Co., 298 Pa. Super. 366, 444 A.2d 1217 (1982) and Murphy v. Prudential Property & Casualty Insurance Co., 312 Pa. Super. 236, 458 A.2d 602 (1983), argues that the date of "loss" should be July 16, 1979. This Court's judgment in Murphy, which was based upon its earlier decision in Myers, was reversed by our Supreme Court after this summary judgment motion was entered. See Murphy v. Prudential Property & Casualty Insurance Co., 503 Pa. 528, 469 A.2d 1378 (1983).

In Murphy, the Supreme Court expressly rejected the Myers rationale, holding that section 106(c)(1) "requires a claimant seeking to recover the cost of an allegedly covered service to commence suit within two years of the date that the claimant knew or should have known that the service rendered was necessitated by the accident." 503 Pa. at 532, 469 A.2d at 1380. The Supreme Court in Murphy imposed two criteria to determine the accrual date of a medical expense: when the medical service was rendered; and whether the claimant knew or should have known at that time that the service was necessitated by the accident. See id., 503 Pa. at 533, 469 A.2d at 1380. Since the trial court believed that the accrual date of appellant's claims was the date of appellee's refusal to pay, it did not consider whether appellant ...


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