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CARL GRAF v. STATE FARM INSURANCE COMPANY (04/01/86)

filed: April 1, 1986.

CARL GRAF, SR., ADMINISTRATOR OF THE ESTATE OF CARL GRAF, JR., A/K/A CARL GRAF, DECEASED AND CARL GRAF, SR., IN HIS OWN RIGHT, APPELLANT,
v.
STATE FARM INSURANCE COMPANY



Appeal from the Order entered June 15, 1984 in the Court of common Pleas of philadelphia County, Civil Division, at No. 4214 November Term 1982.

COUNSEL

Richard C. Angino, Harrisburg, for appellant.

Joseph M. Hankins, Philadelphia, for appellee.

Wickersham, Beck and Hoffman, JJ.

Author: Hoffman

[ 352 Pa. Super. Page 128]

This is an appeal from the lower court's order granting appellee's motion for summary judgment and dismissing appellant's complaint with prejudice. Appellant contends that (1) the filing of four class actions against appellee, each seeking no-fault work loss benefits, tolled the running of the statute of limitations on appellant's work loss claim and (2) even without the benefit of such tolling, appellant's claim is not time-barred under § 106(c) of the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act), 40 P.S. §§ 1009.101-1009.701, (West Supp.1984-1985), repealed

[ 352 Pa. Super. Page 129]

    by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984. For the following reasons, we affirm in part and reverse in part the lower court's order and remand for further proceedings consistent with this opinion.

On July 3, 1979, appellant's son (the decedent) was killed in an automobile accident. Appellee paid appellant $1,500 as reimbursement for (no-fault) funeral expenses on November 14, 1979. On November 17, 1982, appellant commenced this action against appellee. Appellant, suing as administrator of his son's estate and in his own right, sought recovery of work loss and survivor's benefits under the No-fault Act. After the pleadings were filed, appellee moved for summary judgment. On June 15, 1984, the lower court granted summary judgment in favor of appellee on both appellant's work loss and survivor's benefits claims. This appeal followed.*fn1

Summary judgment "shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Pa.R.Civ.P. 1035(b). "The burden rests upon the moving party to demonstrate clearly that there is no genuine issue of material fact." Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Superior Ct. 225, 231, 464 A.2d 1313, 1316 (1983), allocatur denied. "In determining whether there is a dispute of material fact, the court must take that view of the evidence most favorable to the non-moving party, giving to that party the benefit of all favorable inferences that might reasonably be drawn from the evidence . . . ." Christo v. Brittany, Inc., 312 Pa. Superior Ct. 255, 263, 458 A.2d 946, 950 (1983), allocatur denied. In our review of the

[ 352 Pa. Super. Page 130]

    lower court's order granting summary judgment, we are limited to reviewing the submitted pleadings and affidavits. Curry v. Estate of Thompson, 332 Pa. Superior Ct. 364, 371 n. 2, 481 A.2d 655, 661 n. 2 (1984). With these principles in mind, we turn to appellant's contentions.

Appellant first contends that the filing of class actions against appellee in 1979, 1980, and 1981, each seeking no-fault work loss benefits for certain designated classes, tolled the running of the statute of limitations on his work loss claim. Both parties have extensively and thoughtfully briefed this issue. Appellant, however, is putting the cart before the horse: we need not consider the class action tolling issue if appellant's claim is timely filed under the applicable No-fault Act limitations section. Here, both ...


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