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C. WILLIAM NYE v. ERIE INSURANCE EXCHANGE AETNA CASUALTY AND SURETY COMPANY ALLSTATE INSURANCE COMPANY AMERICAN STATES INSURANCE COMPANY CNA INSURANCE COMPANY COMMERCIAL UNION ASSURANCE COMPANY DONEGAL MUTUAL INSURANCE COMPANY EMPLOYER'S INSURANCE WAUSAU FIREMAN'S FUND INSURANCE COMPANIES GENERAL ACCIDENT GROUP HARLEYSVILLE INSURANCE COMPANY HARTFORD INSURANCE GROUP HOME INSURANCE COMPANY INSURANCE COMPANY NORTH AMERICA KEMPER INSURANCE COMPANY KEYSTONE INSURANCE COMPANY LIBERTY MUTUAL INSURANCE COMPANY MARYLAND CASUALTY COMPANY MOTORISTS INSURANCE COMPANY NATIONWIDE MUTUAL INSURANCE COMPANY OHIO CASUALTY INSURANCE COMPANY PENNSYLVANIA NATIONAL INSURANCE GROUP PRUDENTIAL INSURANCE COMPANY AMERICA ROYAL-GLOBE INSURANCE COMPANY SAFECO INSURANCE COMPANY SHELBY MUTUAL INSURANCE COMPANY STATE AUTOMOBILE MUTUAL INSURANCE COMPANY STATESMAN GROUP STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY TRAVELERS INSURANCE COMPANIES UNITED STATES FIDELITY AND GUARANTY COMPANY (01/24/86)

filed: January 24, 1986.

C. WILLIAM NYE, JR., INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF KAREN L. NYE, DECEASED, AND ALL OTHERS SIMILARLY SITUATED, APPELLANTS,
v.
ERIE INSURANCE EXCHANGE; AETNA CASUALTY AND SURETY COMPANY; ALLSTATE INSURANCE COMPANY; AMERICAN STATES INSURANCE COMPANY; CNA INSURANCE COMPANY; COMMERCIAL UNION ASSURANCE COMPANY; DONEGAL MUTUAL INSURANCE COMPANY; EMPLOYER'S INSURANCE OF WAUSAU; FIREMAN'S FUND INSURANCE COMPANIES; GENERAL ACCIDENT GROUP; HARLEYSVILLE INSURANCE COMPANY; HARTFORD INSURANCE GROUP; HOME INSURANCE COMPANY; INSURANCE COMPANY OF NORTH AMERICA; KEMPER INSURANCE COMPANY; KEYSTONE INSURANCE COMPANY; LIBERTY MUTUAL INSURANCE COMPANY; MARYLAND CASUALTY COMPANY; MOTORISTS INSURANCE COMPANY; NATIONWIDE MUTUAL INSURANCE COMPANY; OHIO CASUALTY INSURANCE COMPANY; PENNSYLVANIA NATIONAL INSURANCE GROUP; THE PRUDENTIAL INSURANCE COMPANY OF AMERICA; ROYAL-GLOBE INSURANCE COMPANY; SAFECO INSURANCE COMPANY; SHELBY MUTUAL INSURANCE COMPANY; STATE AUTOMOBILE MUTUAL INSURANCE COMPANY; STATESMAN GROUP; STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; TRAVELERS INSURANCE COMPANIES; UNITED STATES FIDELITY AND GUARANTY COMPANY



Appeal from the Order entered September 11, 1984, Court of Common Pleas, Dauphin County, No. 5349 S 1979.

COUNSEL

Richard C. Angino, Harrisburg, for Nye, appellants.

Clyde W. McIntyre, Pittsburgh, for Erie Ins., appellees.

Wickersham, Cirillo and Johnson, JJ.

Author: Johnson

[ 349 Pa. Super. Page 492]

Appellant, C. William Nye, is the administrator of the estate of Karen L. Nye, who was killed in an automobile accident in Swatara Township on December 21, 1978. Nye filed a class action suit in the Court of Common Pleas of Dauphin County against Appellee, Erie Insurance Exchange, and several other insurance carriers seeking post-mortem no-fault benefits for lost wages as provided for under the Pennsylvania No-fault Motor Vehicle Insurance

[ 349 Pa. Super. Page 493]

Act.*fn1 At the time of her fatal accident Karen Nye was covered by a no-fault motor vehicle insurance policy issued by Appellee.

Preliminary objections were filed by the defendant insurance carriers, which contended that Appellant did not state a cause of action. Additionally, all carriers except Erie Insurance Exchange challenged Appellants' standing to bring the action. The trial court dismissed the complaint against all defendants except Erie and also dismissed the class action complaint filed as against Erie because the complaint did not reflect the existence of dependent survivors.

On appeal, this Court reversed the determination of the trial court in Nye v. Erie Insurance Exchange, 307 Pa. Super. 464, 453 A.2d 677 (1982), deciding that a class action suit could be maintained against all the defendants and that there was no requirement to plead the existence of dependent survivors. Upon further review, however, our supreme court, in Nye v. Erie Insurance Exchange, 504 Pa. 3, 470 A.2d 98 (1983), concluded that Appellants' complaint stated a cause of action, but that Appellants only had standing to sue Erie Insurance Exchange. The trial court's dismissal of the complaint against insurance carriers other than Erie was affirmed by the supreme court.

Following remand, Appellee Erie Insurance Exchange filed an Answer and New Matter which alleged that the case should be stayed because Erie was a defendant in Saunders v. Erie Insurance Group, GD80-9011, a case pending in the Court of Common Pleas of Allegheny County. The Saunders complaint, which involved a class action claim seeking no-fault benefits for lost wages, was filed subsequent to the filing of the complaint in the instant case. In Saunders, however, the class had already been certified when Erie filed its request for a stay.

[ 349 Pa. Super. Page 494]

On May 4, 1984 Appellants filed a motion for class certification, partial summary judgment and consolidation with several other cases pending in Dauphin County. The trial court also had under consideration three petitions to intervene from representatives of decedents insured by Erie and six other petitions from representatives of decedents covered by insurance companies which had already been dismissed from this action.

A certification hearing was held on August 15, 1984. Two days prior to the hearing Appellants filed a Petition to Amend Complaint seeking to enlarge the putative class to include all survivors and estates denied work loss benefits as early as November 15, 1975. In an order and opinion dated September 11, 1984, the trial court denied Appellants' motions for class certification, partial summary judgment and ...


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