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DOREEN WERCOCH v. LIBERTY MUTUAL INSURANCE COMPANY (05/15/81)

filed: May 15, 1981.

DOREEN WERCOCH,
v.
LIBERTY MUTUAL INSURANCE COMPANY, APPELLANT



No. 1319 October Term, 1979, Appeal from the Order entered May 31, 1979, of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3963 of March Term, 1979.

COUNSEL

John C. Janos, Philadelphia, for appellant.

Ronald Bummfield, Philadelphia, for appellee.

Hester, Wickersham and Lipez, JJ.

Author: Wickersham

[ 287 Pa. Super. Page 47]

This is an appeal from an order requiring Liberty Mutual Insurance Company, respondent-appellant, to pay the maximum

[ 287 Pa. Super. Page 48]

    survivor's loss benefits of $5,000, together with interest, legal fees and expenses, to Doreen Wercoch, petitioner-appellee, pursuant to the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1

On March 20, 1979, Doreen Wercoch of Philadelphia, Pennsylvania filed a petition and rule with the Court of Common Pleas of Philadelphia County against Liberty Mutual Insurance Company [hereinafter Liberty Mutual].*fn2 She alleged inter alia that on or about October 8, 1978, her husband, Stanley Wercoch, was killed in a motor vehicle accident. On the date indicated, Stanley Wercoch was an insured under a certain motor vehicle insurance policy with Liberty Mutual. Petitioner claimed that she was a survivor of Stanley Wercoch as that term is defined in section 1009.103 of the No-Fault Act, and that as such she was entitled to the maximum survivor's loss benefits of $5,000 from Liberty Mutual pursuant to section 1009.202(d) of the Act. She alleged further that Liberty Mutual had refused to honor her demand for payment.

In an answer to Mrs. Wercoch's petition, Liberty Mutual averred that petitioner was separated from Stanley Wercoch at the time of the accident and was not receiving any support from him. Liberty Mutual also asserted that the mere fact that one is a survivor as defined by the No-Fault Act does not automatically qualify one for survivor's loss benefits under the Act. Arguments were heard in the instant matter by the Honorable Ethan Allen Doty who issued an order on May 24, 1979, that Liberty Mutual pay

[ 287 Pa. Super. Page 49]

    survivor's loss benefits in the amount of $5,000 to Mrs. Wercoch pursuant to the No-Fault Act, together with interest calculated at 18% of the aforementioned amount and reasonable legal fees and expenses in the sum of $262.50.

The issue before us is whether the lower court was correct in ordering the payment of the maximum survivor's loss benefits, together with legal fees and expenses, to the estranged spouse of the deceased victim in the absence of a showing of any actual survivor's loss as that term is defined in section 1009.103 of the No-Fault Act. The lower court concluded in its opinion in support of its order that a spouse "need ...


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