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KRIEBEL v. PHOENIX MUT. LIFE INS. CO.

November 22, 1988

MARILYN KRIEBEL, an individual, and THOMAS KRIEBEL, an individual, Plaintiffs,
v.
PHOENIX MUTUAL LIFE INSURANCE CO., Defendant



The opinion of the court was delivered by: COHILL, JR.

 COHILL, CHIEF UNITED STATES DISTRICT JUDGE

 Presently before us is defendant's Renewed Motion for Judgment on the Pleadings and Renewed Motion to Strike Jury Demand. For the reasons stated below, we will grant the Renewed Motion for Judgment on the Pleadings and will deny the Renewed Motion to Strike Jury Demand.

 We note that the parties have filed numerous amendments to their original pleadings; as of the date of this Memorandum Order, the controlling pleadings are Plaintiffs' Amended Complaint, filed May 16, 1988, and Defendant's Answer, filed August 29, 1988.

 I. BACKGROUND

 The plaintiffs, Marilyn and Thomas Kriebel, reside in Finleyville, Pennsylvania. The defendant Phoenix Mutual Life Insurance Company is a Connecticut corporation, licensed to transact insurance business in the Commonwealth of Pennsylvania.

 Plaintiffs' Amended Complaint alleges that on September 22, 1981, Mrs. Kriebel was injured while riding on a trolley. As a result of the accident, Mrs. Kriebel was disabled and has remained disabled. In September, 1981, Mrs. Kriebel was employed by Blue Cross of Western Pennsylvania. She maintained a Long Term Disability Plan (the "Plan") with defendant through Blue Cross.

 The ultimate issue to be resolved in this action is the liability of the defendant to the plaintiffs under that policy.

 Counts 1 and 2 of Plaintiffs' Amended Complaint seek damages and other relief on the basis of Pennsylvania contract law (pled as an assumpsit form of action). The plaintiffs contend that defendant made disability payments to Mrs. Kriebel from March 29, 1982, to February 28, 1985 and after that date wrongfully withheld benefit payments that are due under the policy. In Count 2, Mr. Kriebel makes a claim (in assumpsit), for reimbursement of expenses he incurred as a result of Mrs. Kriebel's disability.

 Count 3 is a claim for relief under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001, et seq. Plaintiffs allege that defendant was the plan administrator for the Plan. They contend that defendant's decision to terminate Mrs. Kriebel's benefits was not supported by substantial evidence and was arbitrary and capricious.

 II. ANALYSIS

 Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, any party may move for a judgment on the pleadings. A Rule 12(c) motion provides a means to dispose of cases, or issues therein, when material facts are not in dispute and a question of law can be resolved by focusing solely on the contents of the pleadings. C. Wright & A. Miller, 5 Federal Practice & Procedure § 1367, at 685.

 Under Rule 12(h)(2) of the F.R.C.P., a defense of failure to state a claim upon which relief can be granted may be raised in a ...


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