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JULIANA GABOVITZ v. STATE AUTOMOBILE INSURANCE ASSOCIATION (03/23/87)

filed: March 23, 1987.

JULIANA GABOVITZ, EXECUTRIX OF THE ESTATE OF ALBERT J. GABOVITZ, DECEASED, ON HER OWN BEHALF AND AS REPRESENTATIVE PLAINTIFF, APPELLANT,
v.
STATE AUTOMOBILE INSURANCE ASSOCIATION, APPELLEE



COUNSEL

Richard C. Angino, Harrisburg, for appellant.

James R. Clippinger, Harrisburg, for appellee.

Wieand, Beck and Watkins, JJ.

Author: Wieand

[ 362 Pa. Super. Page 19]

Juliana Gabovitz, executrix of the Estate of Albert J. Gabovitz, deceased, commenced a class action on behalf of

[ 362 Pa. Super. Page 20]

    her deceased husband's estate and also on behalf of others similarly situated to recover post-mortem work loss benefits under Pennsylvania's No-fault Motor Vehicle Insurance Act.*fn1 She now appeals from an order of the Court of Common Pleas of Dauphin County which revoked class certification and from the entry of summary judgment in favor of appellee, State Automobile Insurance Association (State Auto). We affirm.

Albert Gabovitz sustained fatal injuries in a motor vehicle accident on February 18, 1976. He was insured pursuant to a policy of no-fault insurance which had been issued by State Auto. In April of 1976, Juliana Gabovitz, acting as executrix of her deceased husband's estate, filed a claim with State Auto to recover funeral and survivor's benefits. These were promptly paid by State Auto. Over four years later, on November 26, 1980, Gabovitz caused a letter to be sent to State Auto demanding payment of work loss benefits. State Auto denied this claim. Consequently, on December 1, 1980, Gabovitz commenced an action on behalf of her decedent's estate to recover work loss benefits from State Auto. Later, on June 22, 1982, she filed a class action seeking recovery of post-mortem work loss benefits on behalf of her husband's estate and also on behalf of the estates of all insureds of State Auto who had died in automobile accidents following passage of the No-fault Act.

State Auto filed a motion for summary judgment, contending that Gabovitz's claim was barred by the two year statute of limitations contained in the No-fault Act. Gabovitz responded that a four year statute of limitations had application, that this period of limitations had been tolled by previously filed class actions, and, in any event, that State Auto was precluded from raising the statute of limitations defense because of equitable estoppel. The motion for summary judgment was denied by the Honorable William Lipsitt on the ground that disputed factual issues remained with respect to the claim of equitable estoppel.

[ 362 Pa. Super. Page 21]

On December 17, 1984, State Auto filed a "Further Motion for Summary Judgment," which asserted that a four year statute of limitations operated to bar the claim by Gabovitz for work loss benefits. Gabovitz also filed a petition for class certification. The motions of the parties were consolidated for hearing on March 11, 1985. Following hearing, the Honorable Warren Morgan granted the petition for class certification; however, State Auto's motion for summary judgment was again denied because of unresolved factual issues regarding the claim of equitable estoppel. State Auto filed a motion to reconsider the denial of its motion for summary judgment and the grant of class certification. Argument was held on this motion and, on October 22, 1985, Judge Morgan revoked class certification and granted State Auto's motion for summary judgment.*fn2 In so doing, the court concluded as a matter of law that Gabovitz's claim was barred by the statute of limitations and that State Auto was not estopped from raising the statute of limitations defense. Gabovitz appealed.

Gabovitz raises three issues on appeal: (1) whether, in entering summary judgment for State Auto, the trial court erroneously determined that her claim was barred by the statute of limitations; (2) whether there existed unresolved factual issues as to whether the doctrine of equitable estoppel precluded State Auto from asserting the statute of limitations as a defense; ...


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