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LEE R. BRANDON v. ERIE INSURANCE EXCHANGE (03/16/79)

decided: March 16, 1979.

LEE R. BRANDON, APPELLANT,
v.
ERIE INSURANCE EXCHANGE



No. 2432 OCTOBER TERM 1977, Appeal from Order of the Court of Common Pleas, Civil Action, Law of Luzerne County, at No. 8772 of 1976.

COUNSEL

William R. Keller and Stephen A. Teller, Wilkes-Barre, for appellant.

Anthony B. Panaway, Wilkes-Barre, for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Jacobs, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 264 Pa. Super. Page 259]

On March 12, 1976, appellant's step-daughter was accidentally asphyxiated by carbon monoxide poisoning while occupying a motor vehicle operated by one Edward S. Schukers. She died the same day. At the time of the accident, appellant carried insurance with the appellee which provided no-fault benefits in accordance with the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.101, et seq.

Appellant instituted an action in assumpsit on the insurance policy, seeking both "replacement services loss" and "survivor's loss" as those terms are defined under both the No-Fault Act and the insurance policy issued by the appellee. Appellee filed Preliminary Objections which included a motion to strike from the Complaint the claim for "replacement services loss" and a motion for a more specific pleading. Both motions were granted and this Court has authorized an appeal. The ruling that the pleading be made more specific is not challenged in the appeal.

The issue raised by the ruling that the claim for "replacement services loss" be stricken is whether there can be a recovery for replacement services loss after the death of the accident victim.

The term "replacement services loss" is defined under the insurance policy in effect between the parties as follows:

". . . expenses reasonably incurred during the eligible person's lifetime, in obtaining ordinary and necessary

[ 264 Pa. Super. Page 260]

    services replacing those that (had he not been injured) he would have performed, without pay or profit, for the ...


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