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filed: April 28, 1986.


Appeal from Order and Judgment of the Court of Common Pleas, Civil Division, of Dauphin County, No. 2181-S-1982.


Richard C. Angino, Harrisburg, for appellants.

Clyde W. McIntyre, Harrisburg, for appellee.

Wieand, Olszewski and Watkins, JJ.

Author: Wieand

[ 352 Pa. Super. Page 583]

Leonard C. Miller and Beverly R. Miller, the administrators of the estate of Diane K. Miller, deceased, commenced

[ 352 Pa. Super. Page 584]

    a class action to recover post-mortem work loss benefits under Pennsylvania's No-fault Motor Vehicle Insurance Act*fn1 on behalf of their decedent and all others similarly situated. They appeal from an order of the Court of Common Pleas of Dauphin County which denied class certification and granted a motion by the appellee, Federal Kemper Insurance Company (Kemper), for summary judgment. The Millers have also challenged that portion of the same order which denied the petitions of Regina Kotchin and Drexel R. Bradley to intervene as representatives of the class.

On April 29, 1978, Diane Miller sustained fatal injuries as a result of an automobile accident. She was covered by a policy of no-fault insurance which had been issued by Kemper. Kemper refused to pay work loss benefits to Diane Miller's estate. The Millers, on June 22, 1982, commenced a class action on behalf of their deceased daughter and "all insureds of [Kemper] who were covered by the Pennsylvania No-Fault Act with respect to their fatal injuries . . . since the time of the passage of the No-Fault Act." The Millers subsequently moved, inter alia, for class certification and for partial summary judgment on their individual claim. The trial court, after hearing, denied both motions. Later, however, the court granted a petition by the Millers for reconsideration of class certification. In the meantime, the petitions of Kotchin and Bradley to intervene in the class action had been filed. Kemper subsequently filed its own motion for summary judgment on the ground that the Millers' claim was barred by the statute of limitations contained in the No-fault law. After a second hearing,*fn2 the

[ 352 Pa. Super. Page 585]

    trial court denied the Millers' petition for class certification as well as the petitions for intervention. The court also granted Kemper's motion for summary judgment thereby disallowing the Millers' claim.*fn3 An appeal by the Millers followed.

Appellants raise three issues on appeal: (1) whether the trial court erred by entering summary judgment for Kemper on the ground that the Miller claim was barred by the applicable statute of limitations; (2) whether the court abused its discretion by refusing to certify the class; and (3) whether the court erred by denying the petitions to intervene. We reverse the entry of summary judgment, but affirm the denial of certification. We will not review the order denying intervention because the Millers lack standing to challenge it.

I. Statute of Limitations

For the entry of summary judgment, there must not only be an absence of genuine factual issues, but there must also be an entitlement to judgment as a matter of law. Lookenbill v. Garrett, 340 Pa. Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa. Super. 364, 368, 481 A.2d 658, 659 (1984); Rybas v. Wapner, 311 Pa. Super. 50, 54, 457 A.2d 108, 109 (1983). On appeal from an order entering summary judgment, an appellate court

[ 352 Pa. Super. Page 586]

    will reverse the trial court where there has been an error of law or a clear abuse of discretion. Peters Township School Authority v. United States Fidelity and Guaranty Co., 78 Pa. Commw. 365, 370, 467 A.2d 904, 906 (1983).

The statute of limitations applicable to a claim for post-mortem work loss benefits is contained in section 106(c)(1) of the No-fault Act, 40 P.S. § 1009.106(c)(1). See: Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 503 Pa. 547, 550, 469 A.2d 1388, 1389 (1983); Kamperis v. Nationwide Insurance Co., 503 Pa. 536, 539, 469 A.2d 1382, 1383 (1983); Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 177, 455 A.2d 101, 106 (1982). This section states in pertinent part:

(c) Time limitations on actions to recover benefits. --

(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1). Under this statutory provision, the greatest period within which to file an action for post-mortem work loss benefits is four years from the date of the fatal accident. Here, the accident which caused Diane Miller's death occurred on April 29, 1978. The complaint in the instant class action was not filed until June 22, 1982, more than four years following the accident. Thus, unless the limitations period was tolled in the interim, the Millers' class action suit is time barred.

The Millers contend that the statute of limitations was tolled by two class actions previously commenced in Dauphin County to recover similar work loss benefits. These actions, Nye v. Erie Insurance Exchange, No. 5349-S-1979 (Dauphin Cty.) and Seibel v. Allstate Insurance Co., No. 653-S-1981 (Dauphin Cty.), allegedly included the decedent's estate as a potential class member in the assertion of claims for work loss benefits. The Nye and Seibel actions

[ 352 Pa. Super. Page 587]

    were brought against thirty-one insurance companies, including Kemper, which had written substantially all of the no-fault insurance in Pennsylvania. The Nye action was commenced on November 15, 1979 and sought to recover post-mortem work loss benefits on behalf of "all previously employed Pennsylvania residents who were insured by any of the defendants under No-Fault insurance coverage and who sustained a fatal injury within the past two years . . . ." Seibel was a state anti-trust action which had been instituted on February 24, 1981 on behalf of "all individuals who were insured by any of the mentioned defendants at the time of their motor vehicle accidents which resulted in their deaths."

The United States Supreme Court, in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713, rehearing denied, 415 U.S. 952, 94 S.Ct. 1477, 39 L.Ed.2d 568 (1974), addressed the issue of whether a previously filed class action was sufficient to toll the applicable statute of limitations for members of the purported class. There, the State of Utah had commenced a class action on behalf of other public bodies and agencies for federal anti-trust violations allegedly committed by American Pipe. The district court had refused to certify the class on the ground that the class lacked numerosity. Eight days later, several members of the purported class had moved to intervene. In denying these motions, the district court concluded that the claims of the class members had been barred by the applicable statute of limitations. The Court of Appeals reversed, holding that the filing of Utah's class action complaint had tolled the statute of limitations for all of the asserted members of the class.

The United States Supreme Court affirmed. In doing so, the Court examined the policies to be served by class actions and by statutes of limitations. The purpose of class actions, the Court observed, was to promote efficiency and economy of litigation by avoiding "unnecessary filing of repetitious papers and motions." Id. at 550, 94 S.Ct. at 765, 38 L.Ed.2d at 725. Statutes of limitations, on the other

[ 352 Pa. Super. Page 588]

    hand, were "'designed to promote justice by preventing surprises through the revival of claims that ha[d] been allowed to slumber until evidence ha[d] been lost, memories ha[d] faded, and witnesses ha[d] disappeared.'" Id. at 554, 94 S.Ct. at 766, 38 L.Ed.2d at 727, quoting Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788, 792 (1944). The Court determined that both policies would be promoted by permitting the asserted class members to intervene in the action. To hold otherwise, the Court observed, "would frustrate the principal function of a class suit, because then the sole means by which members of the class could assure their participation in the judgment if notice of the class suit did not reach them until after the running of the limitation period would be to file earlier individual motions to join or intervene as parties -- precisely the multiplicity of activity which [Fed.R.C.P.] 23 was designed to avoid." Id. at 551, 94 S.Ct. at 765, 38 L.Ed.2d at 725. In addition, the Court said, the policies underlying statutes of limitations

     are satisfied when, as here, a named plaintiff who is found to be representative of a class commences a suit and thereby notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation, whether the actual trial is conducted in the form of a class action, as a joint suit, or as a principal suit with additional intervenors.

Id. at 554-555, 94 S.Ct. at 767, 38 L.Ed.2d at 727 (footnote omitted). The Court concluded, therefore, that "the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action." Id. at 554, 94 S.Ct. at 766, 38 L.Ed.2d at 727.

[ 352 Pa. Super. Page 589]

In Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 103 S.Ct. 2392, 76 L.Ed.2d 628 (1983), the Supreme Court extended the tolling rule of American Pipe to protect not only intervenors, but purported class members who later filed their own individual actions. Having determined that application of the tolling principle to individual actions would not offend the policies discussed in American Pipe, the Court stated: "While American Pipe concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the ...

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