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BLANCH E. MATTIA v. EMPLOYERS MUTUAL COMPANIES (01/29/82)

filed: January 29, 1982.

BLANCH E. MATTIA, APPELLANT,
v.
EMPLOYERS MUTUAL COMPANIES



No. 2650 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Philadelphia County, at No. 2996 November Term, 1978.

COUNSEL

David N. Rosen, Philadelphia, for appellant.

James W. Hennessey, Norristown, for appellee.

Cercone, President Judge, and Hester and Johnson, JJ.

Author: Cercone

[ 294 Pa. Super. Page 578]

On November 12, 1977, appellant, Blanch E. Mattia, was crossing Frankford Avenue in the city of Philadelphia, on foot, when she was struck by an automobile. As of that date, Mrs. Mattia was insured under a policy of insurance issued to her son by appellee, Employers Mutual Companies. At the time of the accident, Mrs. Mattia was self employed, having opened a florist shop some six months earlier, on or about May 16, 1977.

[ 294 Pa. Super. Page 579]

Appellee refused to compensate Mrs. Mattia under the Pennsylvania No-fault Motor Vehicle Insurance Act (No-fault Act),*fn1 claiming that Sections 202(b) and 205 of the No-fault Act precluded her recovery of work loss benefits. The lower court supported appellee's contentions, and thus, granted appellee's motion for summary judgment. It is from that order which the present appeal lies.

Appellant raises four issues on appeal. Appellant's first claim faults the lower court for granting summary judgment where work loss benefits under the No-fault Act were denied to a self-employed individual who showed no income at the time of injury. Finding this first argument meritorious, we must reverse the order of the lower court and remand the case for proceedings consistent with our opinion.*fn2

The rules of civil procedure dictate that summary judgment may be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that no genuine issue as to any material fact exists and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035. See also Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970). The court must accept as true all well-pleaded facts in the non-moving party's pleadings, as well as admissions on file, giving them the benefit of all reasonable inferences to be drawn therefrom. Hankin v. Mintz, 276 Pa. Superior Ct. 538, 419 A.2d 588 (1980); Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Superior Ct. 198, 280 A.2d 570 (1971). The entire record is to be examined in the light most favorable to the party opposing the motion, and all doubts concerning the existence of a genuine issue of fact must be resolved in that party's favor. See Bowman v. Sears Roebuck & Co., 245 Pa. Superior Ct. 530,

[ 294 Pa. Super. Page 580369]

A.2d 754 (1976); Husak v. Berkel, Inc., 234 Pa. Superior Ct. 452, 341 A.2d 174 (1975). In the case at bar, because a doubt as to a triable issue of material fact existed, specifically the absence or presence of work loss, and because we find the moving party was not entitled to a judgment as a matter of law, summary judgment should not have been granted.

According to the history of the case, Mrs. Mattia was self-employed as a florist trading under the fictitious name of Blanch's Flower Shop. She was so employed from May 16, 1977 to the date of the accident which was November 12, 1977. For the calendar year of 1977, the florist shop showed a net loss of $715.86 based upon gross receipts of $1500.85. During this period, Mrs. Mattia did not receive a salary from the business. At the time of the accident, however, she was anticipating substantial Yuletide profits, which normally accompany the holiday season. Below, the lower court agreed with the appellee's contention that application ...


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