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BETTY LOU BRENNA v. NATIONWIDE INSURANCE CO. (01/22/82)

filed: January 22, 1982.

BETTY LOU BRENNA
v.
NATIONWIDE INSURANCE CO., APPELLANT



No. 548 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Bedford County, Civil Action, Law, at No. 203 of 1979

COUNSEL

Scott A. Fleischauer, Hollidaysburg, for appellant.

William B. Anstine, Jr., York, for appellee.

Spaeth, Popovich and Montgomery, JJ.

Author: Montgomery

[ 294 Pa. Super. Page 566]

The instant appeal arises from an order of the lower court directing the Defendant-Appellant Nationwide Insurance Co. to pay certain benefits pursuant to the Pennsylvania

[ 294 Pa. Super. Page 567]

No-fault Motor Vehicle Insurance Act. [Act of July 19, 1974, P.L. 489, No. 176, Art. I, § 101 et seq., 40 P.S. § 1009.101 et seq., effective 12 months thereafter.] It is not disputed that the Appellee, Betty Lou Brenna, was covered by an insurance policy issued by the Appellant which was in force on October 20, 1977, the date of an accident in which the Appellee was injured.

This action was instituted by the Appellee to recover certain No-fault benefits which the Appellant refused to pay. The dispute arose after the Appellant paid for a substantial amount of medical care furnished to the Appellee, but then took the position that the Appellee was fully recovered from her injuries, and refused to make further payments. The lower court ordered the Appellant to pay the bills for the additional medical treatment experienced by the Appellee. On this appeal, the Appellant first contends that the evidence was not sufficient to support the Court's finding that it was liable to pay such bills as were accrued after May 1, 1978. Second, the Appellant argues that the lower court erred in ordering that it pay the Appellee's counsel fees incurred in the pursuit of No-fault benefits in this action. Last, the Appellant maintains that the Appellee was not entitled to collect transportation expenses under the No-fault Act for trips to her treating physician's office, and a hospital.

In our review on this case, we must be mindful that findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. Firestone v. Luther Ford Sales, Inc., 271 Pa. Superior Ct. 480, 414 A.2d 355 (1979). The appellate court, in these circumstances, is limited to determinations of whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law. Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa. Superior Ct. 177, 395 A.2d 1373 (1978). It is also clear that in reviewing the findings of the trial judge, the victorious party is entitled to have the evidence viewed in the light most favorable

[ 294 Pa. Super. Page 568]

    to him and all the evidence and proper inferences favorable to the successful party must be taken as true and all unfavorable inferences rejected. Courts v. Campbell, 245 Pa. Superior Ct. 326, 369 A.2d 425 (1976); Colish v. Goldstein, 196 Pa. Superior Ct. 188, 173 A.2d 749 (1961). This is especially true where the credibility of witnesses had to be weighed by the lower court. Brentwater Homes, Inc. v. Weibley, 471 Pa. 17, 369 A.2d 1172 (1977).

We first examine the issue of whether there was sufficient proof to support the finding of further medical payment liability against the Appellant after the date Appellant sought to terminate such benefits. The Appellant has taken the position that the Appellee should not have been entitled to benefits after May 1, 1978, because the Appellee allegedly failed to prove that she was "not disabled from resuming employment" after that date. It is apparent that the Appellant, in making that claim, relies upon a report, dated April 10, ...


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