No. 359 April Term 1979 Appeal from Order of the Court of Common Pleas of Allegheny County, Civil Division at GD78-9321.
Richard Federowicz, Pittsburgh, for appellant.
Mark E. McKinney, Pittsburgh, for appellees.
Spaeth, Wickersham and Lipez, JJ.
[ 283 Pa. Super. Page 338]
This is an appeal from an order granting summary judgment. The principal issue is whether the lower court was correct in holding that a minor child should as a matter of law be considered dependent on his father and therefore entitled to survivor's loss benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn1 A second issue is whether we should remand to permit a claim to be made for work loss benefits under our decision in Heffner v. Allstate Insurance Company, 265 Pa. Super. 181, 401 A.2d 1160 (1979).*fn2
[ 283 Pa. Super. Page 339]
1. On April 30, 1977, Robert Daniels was killed in a motor vehicle accident, which occurred when he was an uninsured passenger in an uninsured truck. Daniels was married to Sharon Brawdy Daniels and they had a child, Robert. On behalf of herself and Robert, Sharon Daniels filed a claim for survivor's loss benefits with the Assigned Claims Bureau. The claim was assigned to State Farm Mutual Automobile Insurance Company. When State Farm took the deposition of Sharon Daniels, she said that Daniels had never supported her or their child; that they had separated after only four months of marriage and less than one month after their child was born; and that at the time of the accident, they were in the final stage of obtaining a divorce. State Farm refused payment, and both sides moved for summary judgment. The lower court held that Sharon Daniels and Robert were both survivors within the No Fault Act definition of survivor.*fn3 Slip op. at 3-4. The court -- not explicitly but by its failure to act upon it -- denied the motion for summary judgment in favor of Sharon Daniels as an individual, on the ground that in view of the divorce action, her loss was uncertain, but it granted the motion in favor of Robert, on the ground that it could find that his loss would exceed the statutory maximum of $5,000, since he was less than a year old at the time of his father's death. State Farm has appealed the summary judgment in favor of Robert.
[ 283 Pa. Super. Page 340]
In construing the No Fault Act we are aided by a vigorous statement of legislative findings and intent. The General Assembly found that "the maximum feasible restoration of all individuals injured and compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents on Commonwealth highways, in intrastate commerce, and in activity affecting intrastate commerce is essential to the humane and purposeful functioning of commerce." 40 P.S. § 1009.102(a)(3). It therefore declared its policy to be "to establish . . . a statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims and the survivors of deceased victims." 40 P.S. § 1009.102(b).
The question of whether as a matter of law a minor child is dependent upon a parent for purposes of survivor's loss benefits under the No Fault Act is one of first impression. Appellant cites several cases where courts have required evidence of actual dependence and loss. Midboe v. State Farm Mutual Automobile Insurance Co., 8 D. & C.3d 83, affirmed per curiam, 261 Pa. Super. 447, 395 A.2d 991 (1978); Saur v. Travelers Insurance Co., 60 Erie L.J. 107 (1977); Dennis v. Ohio Casualty Insurance Co., 61 West.L.J. 28 (1977). In each of these cases the deceased victim was the child of the person claiming survivor's loss benefits. In both Midboe and Saur the victim was not currently providing any parental support. In Midboe the court rejected the mother's argument that proof that her son would probably have supported her sometime in the future should make her a survivor under the No Fault Act. In Dennis the victim had been providing a relatively small amount of support to his mother. The court held that whether this amount made the mother a survivor eligible for survivor's loss benefits was a question of fact. These cases do not help us, for whether a parent should be regarded as dependent upon a child is an entirely different question from whether a child should be regarded as dependent upon a parent. 48 P.S. § 131 and 62 P.S. § 1973 establish the parent's duty to support a minor child; 18 Pa.C.S.A. §§ 4304, 4321 provide
[ 283 Pa. Super. Page 341]
criminal sanctions for failure to fulfill that duty. A father's duty to support his child is not ended by a divorce from the child's mother. Silverstein v. Silverstein, 246 Pa. Super. 503, 371 A.2d 948 (1977). Thus, here there can be no question but that the deceased had a legal duty to support his son Robert, and that in ...