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DENISE BRENNER v. NATIONWIDE MUTUAL INSURANCE COMPANY (06/23/89)

filed: June 23, 1989.

DENISE BRENNER, APPELLANT,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLEE



Appeal from Judgment entered September 22, 1988, in the Court of Common Pleas of Allegheny County, Civil, No. G.D. 85-22165.

COUNSEL

Charles S. Morrow, Pittsburgh, for appellant.

John C. Donaher, III, Pittsburgh, for appellee.

Olszewski, Montemuro and Kelly, JJ.

Author: Olszewski

[ 385 Pa. Super. Page 184]

Denise Brenner appeals from the judgment entered in the Court of Common Pleas of Allegheny County.

The facts as found by the trial court are as follows: Denise Brenner was injured in an automobile accident on July 23, 1978. On or about February 9, 1981, Brenner filed an action in assumpsit against Nationwide, the basis of which was Nationwide's failure to pay Brenner's additional medical benefits for the injuries arising out of the July 23, 1978, accident. In January of 1983, a conciliation was held before the Honorable Ralph H. Smith, Jr. At that time, the parties reached an agreement wherein Brenner would accept the payment of $203.04 in full settlement of all unpaid no-fault medical benefits.

On January 11, 1983, Nationwide forwarded to Brenner a release to be signed, informing Brenner that upon return of the executed release, the settlement draft already issued would be forwarded. Numerous written requests were made by Nationwide's counsel to Brenner's counsel for return of the release. Not receiving any response over a period of ten months, Nationwide petitioned the trial court to enforce the settlement.

Finally, on January 17, 1984, Brenner executed the release and satisfied the docket. Since it had been over a year from the issuance of the original settlement check, which now bore a stale date, a new check was promptly issued on January 24, 1984, and sent to Brenner.

The instant action was commenced on December 27, 1985. In this second action, Brenner requested payment for further medical bills allegedly incurred as a result of the July 1978 automobile accident. These expenses totaled $7,887.64. Upon review, the trial court held that pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa.S. ยง 1009.106(c)(1) (repealed 1984), Brenner's claim

[ 385 Pa. Super. Page 185]

    was barred by the statute of limitations since it was commenced later than two years after the last payment of benefits. Thereafter, the trial court entered judgment in favor of Nationwide, and Brenner filed the instant appeal.

On appeal, Brenner contends that the trial court erred in its determination since she did not actually receive the check until January 24, 1984. As such, since the instant action was commenced on December 27, 1985, approximately one year thereafter, Brenner alleges ...


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