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ROBERT SEIBEL v. ALLSTATE INSURANCE COMPANY (10/11/85)

filed: October 11, 1985.

ROBERT SEIBEL, ADMINISTRATOR OF THE ESTATE OF DEBORAH G. MCCANN, DECEASED; AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY



Appeal from the Order entered August 3, 1984 in the Court of Common Pleas of Dauphin County, Civil, No. 2183 S 1982.

COUNSEL

Richard C. Angino, Harrisburg, for appellants.

William T. Barker, Harrisburg, for appellee.

Tamilia, Montgomery and Roberts, JJ.

Author: Roberts

[ 346 Pa. Super. Page 386]

Appellant Robert Seibel, administrator of the estate of Deborah McCann, filed a class action complaint seeking work loss benefits under the No-Fault Motor Vehicle Insurance Act, 40 P.S. ยง 1009.101 et seq. (repealed 1984) for his decedent and for other decedents similarly situated. Appellant now challenges the trial court's order denying class certification and granting the motion of appellee, Allstate Insurance Company, for summary judgment on appellant's individual claim. We affirm.

[ 346 Pa. Super. Page 387]

Though the parties disagree about the legal ramifications of some of the facts of this case, the decisional facts are substantially undisputed. Appellant's decedent was killed in an automobile accident on February 27, 1980. The car in which she was riding as a passenger was insured by appellee, who was promptly informed of the accident. A claim for work loss benefits, however, does not appear to have been made until December 1981. Due to appellee's inadvertent misrouting of correspondence pertaining to the claim, benefits were not paid to appellant. Consequently, appellant's counsel filed the present action in June 1982, seeking on behalf of decedent's estate work loss benefits with interest and counsel fees under each of the two policies covering decedent, and like benefits for similarly situated decedents.

On April 18, 1983, appellee sent appellant a check for $18,425, along with a letter characterizing the sum as an unconditional tender of $15,000 in work loss benefits plus 18% interest from January 10, 1982 until the date of the letter.*fn1 The letter also expressed appellee's willingness to pay reasonable counsel fees for this period. In a letter dated April 26, 1983, appellant's counsel accepted the check for his client "as partial payment for our work loss claim" and indicated that he had prepared a bill for his services in the present action. In September 1983, appellee paid appellant $2500, purportedly in settlement of appellant's counsel fees claim.

On January 30, 1984, appellant moved, inter alia, for class certification and for partial summary judgment on the issue of appellee's liability. Appellee subsequently moved for summary judgment as to appellant's individual claim. While these motions were being filed and decided, a number of petitions to intervene in the class action were filed.

[ 346 Pa. Super. Page 388]

After a hearing, the trial court denied appellant's motions for class certification and for partial summary judgment and granted appellee's summary judgment motion in an order dated August 3, 1984. Appellant filed a timely petition for reconsideration of class certification, which was dismissed by the court without a hearing after appellant filed the present appeal from the August 3, 1984 order. The petitions to intervene were subsequently dismissed, also without a hearing.

Appellant raises three issues in support of his contention that the trial court erred in denying certification of his class action and in dismissing his petition for reconsideration: 1) partial settlement of the representative plaintiff's claim does not render the class action moot; 2) even complete settlement of the representative plaintiff's claim does not render the class action moot where intervenors are available to replace the representative; and 3) the trial court improperly concluded that appellant failed to prove that two of the requisites of a class action exist in the present case.*fn2 We need not address the first two issues, since the third provides sufficient reason to ...


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