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GLEN J. MUSISKO v. EQUITABLE LIFE ASSURANCE SOCIETY (07/19/85)

filed: July 19, 1985.

GLEN J. MUSISKO, APPELLANT,
v.
EQUITABLE LIFE ASSURANCE SOCIETY, A CORPORATION, APPELLEE



No. 420 Pittsburgh, 1984, Appeal from the Order entered in the Court of Common Pleas, Civil Division, Allegheny County, No. 7797 of 1982.

COUNSEL

Joseph M. Zoffer, Pittsburgh, for appellant.

Nicholas A. Pasciullo, Pittsburgh, for appellee.

Brosky, Rowley and Feeney, JJ.*fn*

Author: Rowley

[ 344 Pa. Super. Page 103]

OPINION OF THE COURT

This is an appeal from an Order of the trial court granting summary judgment in favor of Equitable Life Assurance Society (Equitable) and dismissing the class action complaint filed by Glen J. Musisko. We reverse.

The procedural and factual history of this case is as follows. On July 25, 1982, appellant was seriously injured in an automobile accident. On October 28, 1982, appellant filed an action in assumpsit against Equitable in the Arbitration Section of Civil Division of the Allegheny County Court of Common Pleas. Appellant's complaint sought recovery of weekly sickness and accident benefits under a group policy issued to United States Steel, appellant's employer, pursuant to an agreement with the United Steelworkers of America, of which appellant is a member. At the time of the accident herein, appellant was insured under the group policy issued by Equitable and under an automobile

[ 344 Pa. Super. Page 104]

    insurance policy which provided for no-fault benefits pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. ยงยง 1009.101-1009.701. At the time he filed his complaint, appellant was receiving wage loss benefits under his no-fault policy in the amount of $1,000.00 per month.

It is undisputed that the group policy issued by Equitable provides for disability benefits in the sum of $217.00 per week. However, the policy contains the following provision at Section 9.37:

The benefits otherwise payable under the program will be off-set by similar benefits payable for wage loss or medical expenses . . . under any insurance policy, bond, fund, or other arrangement required by any motor vehicle insurance law requiring the provision of benefits for personal injury without regard to fault.

On the basis of the limitation in Section 9.37 of the policy, Equitable filed preliminary objections to appellant's complaint in the nature of a demurrer and for a more specific pleading. The trial court found that the provision clearly and unambiguously provided for dollar-for-dollar set-off against no-fault benefits. Nonetheless, the preliminary objections were overruled on the ground that the insurer had not offered evidence to establish the insured's awareness and understanding of the limitation of coverage under the ...


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