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VERONICA LEWCHENKO v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (05/17/85)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 17, 1985.

VERONICA LEWCHENKO, ADMINISTRATRIX OF THE ESTATE OF CHRISTOPHER LEWCHENKO, AND VERONICA LEWCHENKO AND JOHN LEWCHENKO, INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS, APPELLANTS,
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY

Appeal from the Order of January 10, 1984 in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD82-19297.

COUNSEL

John T. Tierney, III, Pittsburgh, for appellants.

Frank M. Gianola, Pittsburgh, for appellee.

Cirillo, Hoffman and Rosenwald, JJ.*fn1

Author: Per Curiam

[ 342 Pa. Super. Page 369]

This is an appeal from the lower court order granting summary judgment in favor of appellee. We affirm.

Appellants' decedent was killed in a motor vehicle accident on April 26, 1976. On October 8, 1982, appellant, Veronica Lewchenko, filed a complaint in assumpsit against appellee, State Farm Mutual Automobile Insurance Company, seeking post-mortem work loss and survivor's benefits under the Pennsylvania No-Fault Motor Vehicle Insurance

[ 342 Pa. Super. Page 370]

Act, 40 P.S. §§ 1009.101 et seq.*fn2 On January 7, 1983, the lower court granted appellant's motion to amend by (1) adding an additional plaintiff, John Lewchenko, as a survivor of the decedent's estate; and (2) converting the complaint into a class action on the survivors benefits issue. On January 10, 1984, appellee's motion for summary judgment was granted, thereby prompting this appeal.

We initially find that, because neither no-fault nor survivor's benefits have been paid and appellants' action for survivor's benefits was not filed within one year of the decedent's death, summary judgment was properly granted against appellants on that claim. See 40 P.S. § 1009.106(c)(2); Fusco v. Keystone Insurance Co., 312 Pa. Superior Ct. 471, 474-75, 458 A.2d 1390, 1391-92 (1983). Similarly, because no-fault benefits have not been paid and appellants' action for post-mortem work loss benefits was not filed within four years of the accident (the maximum allowable time within which to bring an action to recover these benefits),*fn3 we find that summary judgment was also properly entered against appellants on that claim. See 40 P.S. § 1009.106(c)(1); Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 541, 469 A.2d 1382, 1384 (1983).

[ 342 Pa. Super. Page 371]

Appellants contend, however, that the November 15, 1979 commencement of a class action in Dauphin County seeking post-mortem work loss benefits from thirty-one insurance carriers, see Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), tolled the four-year statute of limitations. In support of this argument, they rely upon American Pipe and Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Because appellants are raising this issue for the first time on appeal, however, we may not consider it. Vend-A-Matic, Inc. v. Page 371} Frankford Trust Co., 296 Pa. Superior Ct. 492, 499, 442 A.2d 1158, 1162 (1982). At oral argument counsel for appellants argued that their motion to transfer this case to the pending class action in Dauphin County sufficiently put the issue before the lower court. We cannot agree. Nowhere in that motion is the tolling issue raised or even remotely suggested, nor is American Pipe cited anywhere therein. Accordingly, we affirm the order of the lower court.


*fn1 Judge Edward Rosenwald of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.


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