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LEONARD J. FASSETTE v. ERIE INSURANCE EXCHANGE (09/06/88)

filed: September 6, 1988.

LEONARD J. FASSETTE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF MATTIE FASSETTE, DECEASED, APPELLANT,
v.
ERIE INSURANCE EXCHANGE, APPELLEE



Appeal from the Judgment Entered August 24, 1987, in the Court of Common Pleas of Erie County, Civil Division, at No. 1325 A 1986

COUNSEL

Cathy M. Lojewski, Northeast, for appellant.

Warren T. Jones, Erie, for appellee.

Rowley, Del Sole and Montgomery, JJ.

Author: Montgomery

[ 377 Pa. Super. Page 549]

The appeal in this case involves a claim for death benefits, based upon a policy of automobile insurance. The Plaintiff-Appellant instituted suit on his own behalf and as Administrator of the Estate of his deceased wife, seeking such benefits as a result of his wife's death in a motor vehicle accident in November, 1984. The trial court entered an Order granting a Motion for Summary Judgment filed by Defendant-Appellee Erie Insurance Exchange, and dismissing a Cross-Motion for Summary Judgment submitted by the Appellant.

This action was commenced in early April, 1986, by the filing of a class action Complaint by the Plaintiff. Therein, he sought the recovery of a death benefit which he claimed under certain provisions of an insurance policy issued to him by the Defendant. In addition to seeking a recovery on grounds of an alleged breach of contract, the Plaintiff also asserted a claim for punitive damages. The Defendant filed preliminary objections with regard to the claim for punitive damages. Such preliminary objections were granted by the trial court, as to the punitive damage claim, and the Defendant thereafter filed an Answer and New Matter. The Plaintiff filed an Answer to the New Matter. In March, 1987, the Defendant filed a Motion for Summary Judgment, and on April 20, 1987, the Plaintiff filed a Cross-Motion for Summary Judgment. After hearing argument and reviewing briefs submitted by the parties, the trial court entered an Order granting the insurer's Motion for Summary Judgment, and denying the Plaintiff's Cross-Motion.

Although his Complaint recites that this action was instituted by the Plaintiff as a class action, he did not file a Motion for Class Certification until after argument on the Motions for Summary Judgment before the trial court. The trial court never ruled on the class action certification

[ 377 Pa. Super. Page 550]

    request, apparently because of its granting of the defense Motion for Summary Judgment. No issue was raised on this appeal by either party concerning the propriety of the Appellant's request for class certification in this action. Also, the trial court's rejection of the Plaintiff's punitive damage claim is not challenged on appeal.

The record indicates that on August 3, 1984, the Defendant insurer issued an automobile insurance policy to the Plaintiff. The policy consisted of three parts. The first was a twelve page standard form policy. The second part was a "Declarations" page. The final part, an "Auto Endorsement", was entitled "PERSONAL INJURY PROTECTION (PIP) NO-FAULT COVERAGE -- PENNSYLVANIA".

The Defendant maintains that it paid all benefits due on the policy as a result of the death of the wife of the Plaintiff, including medical expenses, "survivor's loss" benefits in the amount of $5,000.00, and funeral benefits in the amount of $1,500.00. Such benefits are provided for in the "Auto Endorsement" provision of the policy which details the PIP No-Fault coverages. It is the contention of the Plaintiff that he is entitled to recover additional death benefits under the policy, in accordance with provisions set forth in the initial standard form policy ...


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