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GLADYS GORDON v. PENNSYLVANIA BLUE SHIELD (10/04/88)

filed: October 4, 1988.

GLADYS GORDON, APPELLANT,
v.
PENNSYLVANIA BLUE SHIELD, APPELLEE



Appeal from the Order entered January 2, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 3809 July Term 1987.

COUNSEL

Joel M. Lieberman, Philadelphia, for appellant.

Don P. Foster, Philadelphia, for appellee.

Tamilia, Kelly and Hester, JJ.

Author: Kelly

[ 378 Pa. Super. Page 258]

This is an appeal from the Order of January 2, 1988 in which defendant's preliminary objections to plaintiff's complaint were granted. The trial court ordered Counts II through V stricken from plaintiff's complaint. Plaintiff appeals. We affirm.

On December 10, 1985, plaintiff/appellant, Gladys Gordon, was operating a motor vehicle when she was struck from behind by another vehicle. As a result of this accident, Gordon sustained injuries. At the time, Gordon maintained automobile insurance with Erie Insurance Company for liability and no-fault benefits; Gordon maintained medical insurance with Philadelphia Blue Cross and Pennsylvania Blue Shield (Blue Shield) by virtue of her membership in her employer's group medical plan.

Gordon claimed total medical bills from the automobile accident of $12,339.55. After exhausting her $10,000.00 no-fault benefits through Erie, Gordon submitted a secondary claim to appellee Blue Shield for the balance of $2,339.55. Blue Shield denied payment. Gordon then filed a five count complaint against Blue Shield alleging in Count I, breach of contract; in Count II, misrepresentation and deceit; in Count III, violation of the Unfair Trade Practices and Consumer Protection Law; in Count IV, punitive damages; and in Count V, class action status. Blue Shield filed preliminary objections to Gordon's complaint which were granted by the trial court. The trial court ordered Counts II through V of appellant's complaint stricken. Gordon now appeals to this Court and raises the following issue:

Does plaintiff, Gladys Gordon, have the private right to bring a cause of action against an insurance carrier for the violation of the Unfair Trade Practices and Consumer Protection Law?

(Appellant's Brief at 3).

Our standard of review of such cases has been set forth in Pekular v. Eich, 355 Pa. Super. 276, 513 A.2d 427 (1986):

With respect to preliminary objections which are sustained by the trial court:

[ 378 Pa. Super. Page 259]

In determining whether the lower court properly dismissed the complaint, we must take as true 'every well pleaded material fact set forth in the pleading . . ., as well as the inferences reasonably deducible therefrom.' Furthermore, we must bear in mind

     the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary ...


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