No. 1438 OCTOBER TERM, 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, at No. 76-4290. C.P.-Civil Action, Law
John V. Hasson, Ambler, for appellant.
Edward F. Kane, Norristown, for appellee.
Spaeth, Brosky and Van der Voort, JJ.
[ 285 Pa. Super. Page 125]
Appellant Stephen J. Dorsey, Jr. was injured in an automobile accident on July 30, 1975. As a result of the accident, Mr. Dorsey's left wrist had to be fused, causing a permanent loss of flexibility in that joint, and an inability (not necessarily permanent) to fully close the left hand or to fully flex the left elbow. In 1977, Mr. Dorsey began receiving social security disability payments for an 80% disability. He has not worked since the date of the accident.
Mr. Dorsey's insurance company, appellee herein, paid all medical bills, but disputed the amount claimed by Mr. Dorsey as work loss benefits, and offered to pay only the amount of $5.77*fn1 per week. Complaint was filed against the insurance company, and a non-jury trial was held on October 10, 1978. The lower court, by Opinion and Order dated April 18, 1979, found for the insurance company, and appellant filed this appeal with our Court.
Appellant argues that the lower court erred in its interpretation of how to calculate "probable annual income", as that term is used in § 205(c) and defined in § 205(d) of the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn2 It is not entirely clear from the record how the lower court interpreted the Act, except that the lower court, in its
[ 285 Pa. Super. Page 126]
opinion of April 18, 1979, clearly rejected calculation of "probable annual income" based on any three years prior to the accident that the insured might choose. Such an interpretation is not now urged by appellant on appeal, and we are unable to determine whether that was appellant's position in the lower court. At any rate, a close examination of § 205 is necessary in order to determine how the calculation should be made.
Section 205(c) of the Act provides: "The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by: (1) determining his probable weekly income by dividing his probable annual income by fifty-two; and (2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period." (Emphasis added). "Probable annual income" is defined in § 205(d) for a victim who was not employed at the time of the accident, "absent a showing that it is or would be some other amount", as "the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs . . . ." (Emphasis added).
It seems fairly clear from this language that in the case before us appellant's "probable annual income" should be calculated by averaging his gross annual income from the years 1969, 1970 and 1973, the three years in which he was employed preceding the accident. Accepting for the present, appellant's calculation of $4,668.83 as the average for those three years,*fn3 then appellant's "probable annual income" would be $4,668.83 and his "probable ...