Appeal from the Judgment in the Court of Common Pleas of Erie County, Civil No. 2227-A-1981
Thomas J. Ridge, Erie, for appellant.
Mark E. Mioduszewski, Erie, for appellee.
Spaeth, President Judge, and Brosky and Olszewski, JJ.
[ 342 Pa. Super. Page 519]
This appeal is from an order granting appellee's motion for judgment on the pleadings. The trial court held that appellant's claim for additional no-fault benefits was barred by the statute of limitations contained in the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.106(c)(1). We affirm.
Before reaching appellant's argument we shall consider appellee's arguments that appellant commenced this action improperly, and that, having failed to file exceptions, appellant has preserved no issues for review on appeal.
Appellee first argues, and we agree, that an action under the No-fault Act is to be commenced by praecipe for writ of summons or complaint as provided in Pa.R.C.P. 1007. Floczak v. Nationwide Insurance Company, 289 Pa. Super. 438,
[ 342 Pa. Super. Page 520433]
A.2d 885 (1981). However, appellant's petition was filed before our decision in Floczak. Moreover, even if the petition had been filed after Floczak, appellee, by filing a reply to the petition, rather than preliminary objections, waived objection to the form of action. Jones v. State Automobile Insurance Association, 309 Pa. Super. 477, 455 A.2d 710 (1983). Indeed, the trial court, in an opinion and order dated February 3, 1982, anticipating our decision in Jones, stated that it would "deem the petition and reply to be the equivalent to a complaint and answer." Slip op. at 2.*fn1
Appellee next argues that Jones required appellant to file exceptions to the trial court's order granting judgment on the pleadings. Appellee's reliance on Jones is misplaced. In Jones, the appeal was from the order "dismissing" a petition for no-fault benefits after the case had been submitted to the trial court on petition, rule, answer and depositions, and following oral argument. In ruling that exceptions were required, we treated the case, which was an appeal from an order granting summary judgment, Pa.R.C.P. 1035, as on its facts equivalent to an appeal from the disposition of a case on its merits in a non-jury trial, Pa.R.C.P. 1038. So treated, exceptions were required. Here, in contrast, the trial court entered judgment on the pleadings, Pa.R.C.P. 1034, ruling that appellant's action was barred by the statute of limitations. In so ruling, the court did not go beyond the pleadings, as the ...