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HOPE A. DEMICHELE v. ERIE INSURANCE EXCHANGE (07/21/89)

decided: July 21, 1989.

HOPE A. DEMICHELE, ADMINISTRATRIX OF THE ESTATE OF SAMUEL B. DEMICHELE, APPELLEE,
v.
ERIE INSURANCE EXCHANGE, APPELLANT



Appeal from Order entered November 3, 1988, in the in the Court of Common Pleas of Erie County, Civil, No. 2075-A-1988.

COUNSEL

Marcia H. Haller, Erie, for appellant.

Craig A. Markham, Erie, for appellee.

Olszewski, Montemuro and Kelly, JJ.

Author: Olszewski

[ 385 Pa. Super. Page 635]

Erie Insurance Exchange ("Erie") appeals from an order entered by the Court of Common Pleas of Erie County granting appellee's motion for summary judgment and denying Erie's cross-motion for summary judgment.

On August 2, 1987, Samuel B. DeMichele ("decedent") was involved in a motor vehicle collision which resulted in his death. The decedent was a passenger in an automobile driven by a third party. At the time of his death, decedent resided with his parents and owned a registered but uninsured automobile.

Subsequently, Hope A. DeMichele ("DeMichele"), administratrix of decedent's estate, submitted her request for first-party benefits under the decedent's father's insurance policy which had been issued by Erie. The policy covered members of the decedent's father's residence. Erie denied this request, claiming that the decedent was ineligible under

[ 385 Pa. Super. Page 636]

Section 1714 of the Financial Responsibility Law because he had no source of liability coverage.

As such, DeMichele instituted an action against Erie, seeking to recover under the terms of the insurance contract. DeMichele then filed a motion for summary judgment. Following, Erie also filed a motion for summary judgment. Arguments were heard on said motions, whereupon the Honorable Richard L. Nygaard denied Erie's motion and granted DeMichele's motion.

Thereafter, DeMichele filed a petition for assessment of attorney's fees. This matter was reviewed by the Honorable James B. Dwyer, who entered an order assessing damages and awarding attorney's fees in conformance with the order which granted DeMichele's motion for summary judgment. Erie took exception to said order and filed the instant appeal.

On appeal, Erie contends that the trial court erred in: (1) denying its motion for summary judgment and granting DeMichele's motion for the same pursuant to § 1714 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1701 et seq.; and (2) awarding attorney's fees to DeMichele since there was a justifiable dispute between the parties and ...


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