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filed: July 9, 1982.


No. 234 March Term, 1978, Appeal from the Order of the Court of Common Pleas of York County, Civil Division, No. 77-S-1725.


Richard C. Angino, Harrisburg, for appellant.

Laurence T. Himes, Jr., York, for appellee.

Cercone, President Judge, and Hester, Cavanaugh, Wickersham, Beck, Montemuro and Popovich, JJ. Hester, J., filed a dissenting opinion.

Author: Cercone

[ 301 Pa. Super. Page 346]

The instant appeal*fn1 presents us with a question under that embattled statute, the Pennsylvania No-fault Motor

[ 301 Pa. Super. Page 347]

Vehicle Insurance Act.*fn2 The operative facts are these. On January 14, 1977 John G. Freeze, III, was struck and killed by an automobile while sled riding near his home in Wrightsville, York County. The no-fault insurance coverage on the family automobile was carried by Donegal Mutual Insurance Company (appellee hereinafter); decedent was insured under the policy as a member of the household. At the time of his death decedent was eleven years old. Decedent's father, John G. Freeze, Jr., (hereinafter appellant) acting as administrator of his son's estate, requested and received the funeral benefits due under the insurance policy. Appellant also requested that appellee pay work loss benefits as defined by the No-fault Act. The latter request was refused. Appellant then instituted the instant action on behalf of his son's estate in order to recover the work loss benefits.*fn3 Appellee filed preliminary objections in the nature of a demurrer asserting that a decedent's estate is not allowed to recover work loss benefits under the Act since such benefits may only be had by the statutorily defined

[ 301 Pa. Super. Page 348]

    class of "survivors."*fn4 Appellee also asserted that work loss benefits are neither due the survivors of a deceased eleven year old who had never worked, nor calculable. The lower court sustained appellee's demurrer to the complaint's sole cause of action, but sua sponte granted appellant leave to amend the complaint to allow appellant to seek survivors loss benefits and reimbursement for funeral expenses.*fn5 Rather than amend the complaint appellant chose to file this appeal. By agreement of counsel, the original argument in this case was stayed pending our decision of Heffner v. Allstate Ins. Co., 265 Pa. Superior Ct. 181, 401 A.2d 1160 (1979).


Before addressing the merits of the case, we must first surmount a crucial procedural hurdle. Because even an explicit agreement of the parties will not vest jurisdiction in a court where it otherwise would not exist, T. C. R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977); Giannini v. Foy, 279 Pa. Superior Ct. 553, 421 A.2d 338 (1980), we may raise sua sponte the issue of the appealability of a trial court's order. Giannini v. Foy, supra; Davidyan v. Davidyan, 229 Pa. Superior Ct. 495, 327 A.2d 139 (1974).

At the time the instant appeal was filed this Court had jurisdiction over "all appeals from final orders of the courts of common pleas . . . ." Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 742. In ascertaining whether an order is final, we will look beyond the technical effect of the order and apply practical considerations in light of the order's ramifications. See Giannini v. Foy, supra. And see Adoption of G. M., 484 Pa. 24, 398 A.2d 642 (1979); Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734

[ 301 Pa. Super. Page 349]

(1975). Ordinarily, an order which terminates litigation or disposes of the entire case is final, and an order is interlocutory and not final unless it effectively puts the litigant "out of court." Giannini v. Foy, supra; Adoption of G. M., supra; T. C. R. Realty, Inc. v. Cox, supra; Alessandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 409 A.2d 347 (1979); Ventura v. Skylark Motel, Inc., 431 Pa. 459, 246 A.2d 353 (1968).

The lower court's order denied the deceased's estate the right to collect work loss benefits under the No-fault Act. Its stated reason for doing so was that appellant, as representative of his son's estate, is essentially a "deceased victim," and only survivors and "victims" can collect basic loss benefits. Thus, as far as work loss benefits are concerned the estate was "out of court," and the litigation of appellant's chosen cause of action for work loss benefits could proceed no further.

The order also granted appellant leave, however, to amend the complaint in order to seek survivors loss and funeral expenses. Arguably this sua sponte grant of leave to amend the complaint was an interlocutory order. This is so because generally speaking an order which sustains preliminary objections in the nature of a demurrer without dismissing the complaint or entering judgment or otherwise terminating the action between the parties is interlocutory and, therefore, lacks the requisite finality to be an appealable order. Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954). This general rule has been modified, however. If the order in effect, serves to terminate the action between the parties by so restricting the pleader with respect to further amendment of the pleading as to virtually put him out of court on the cause of action he seeks to litigate, it is a definitive and final order, and thus, appealable. Hudock v. Donegal Mutual Ins. Co., 438 Pa. 272, 264 A.2d 668 (1970); Local No. 163, Int'l Union of Brewery Workers v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Sullivan v. Philadelphia, supra.

[ 301 Pa. Super. Page 350]

Appellant could have amended the complaint to seek survivors loss benefits -- the funeral expenses question was moot at the time of the order since appellee had already reimbursed appellant for them -- but this amendment would have altered the cause of action entirely. Appellant sought to litigate the question of whether an estate could recover work loss benefits, not whether recovery of survivors loss benefits is possible. Since this was not a case where appellant sought to recover on more than one cause of action where the court sustained demurrer only as to some of the causes of action advanced, see Giannini v. Foy, supra, but rather one where there was but a single cause of action alleged, appellant was "out of court" on his chosen cause of action. Practically speaking, then, the order sustaining appellee's demurrer is final and appealable. Having, then, an appealable order before us we may proceed to the merits of the case.


Our decision today is controlled by Allstate Ins. Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) which sustained this Court's orders in Heffner v. Allstate Ins. Co., supra, (suit brought by decedent's widow) and Pontius v. United States Fidelity and Guaranty Co., (order of July 3, 1979, remanding case for disposition below in accord with Heffner v. Allstate Ins. Co.) (suit brought by the administration of the deceased's estate).*fn6

[ 301 Pa. Super. Page 351]

Appellee would have us overrule our decision in Heffner v. Allstate Ins. Co., -- a course which we are neither inclined to pursue nor one which is open to us in view of the Supreme Court's recent decision in Allstate Ins. Co. v. Heffner -- or that we construe Section 103 of the No-fault Act strictly and thereby limit the recovery of work loss benefits due under the Act to the statutorily defined class of "survivors" contained therein. This same argument was rejected in both this Court and the Supreme Court. Such an interpretation of the Act as advanced by appellee herein, and by Allstate in both Heffner cases, would abolish "the right of the deceased victim's estate to recover from a tortfeasor the earnings the deceased victim would have contributed to his estate had he survived." Heffner v. Allstate Ins. Co., 265 Pa. Superior Ct. at 191, 401 A.2d at 1164.*fn7 In addressing this issue in Heffner v. Allstate Ins. Co., we stated:

[ 301 Pa. Super. Page 352]

    can never recover monetary damages for lost earnings in a survival action.

However, in Pennsylvania our Constitution, Article III, Section 18 provides that the General Assembly may not limit "the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in the case of death from such injuries, the right of action, shall survive . . . ." To be sure, in another context our Supreme Court found that the No-Fault Motor Vehicle Insurance Act did not violate a similar provision of our Constitution. In Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), the Court construed that part of Article III, Section 18 of the Constitution, which reads: "The General Assembly may enact [workmen's compensation laws] but in no other cases shall the General Assembly limit the amount to be recovered. . . for injuries to persons . . ." [Emphasis added.] The Court concluded that nothing in that clause of Section 18 of the Constitution prohibited the abolition or modification of a cause of action for personal injuries, and that the effect of the threshold provisions of the No-Fault Act was the partial abolition of a cause of action for personal injuries, not the limitation of damages recoverable therefor. Thus, Singer v. Sheppard is distinguishable on several grounds. First, the language of Article III, Section 18 of the Constitution with which we are concerned herein is considerably broader than the clause the Singer court construed. Indeed Section 18 may prohibit even the partial abolition of a cause of action for wrongful death or survival. Second, as footnote [4], supra, and the text accompanying it indicate, it cannot be said with equal confidence in this case that a cause of action has been abolished, indeed Section 301(a)(5) of the No-Fault Act specifically exempts fatal accidents from the general abolition clause of Section 301(a). If Allstate's argument were to prevail, it could only be concluded that the Act abolished only one aspect of damages in a survival action -- economic loss. And, third, even the Court in Singer v. Sheppard perceived that the General Assembly intended to preserve all aspects of recovery for economic losses; the

[ 301 Pa. Super. Page 353]

Court stated: "The No-fault Act, however, allows recovery for proven economic loss without limitation." Id., 464 Pa. at 396, 346 A.2d at 901. This statement would surely be erroneous if Allstate's interpretation of the Act prevail.

Id., 265 Pa. Superior Ct. at 191-193, 401 A.2d at 1165. (Footnotes omitted.) Strictly speaking the foregoing quotation was dictum to our opinion in Heffner v. Allstate Ins. Co. since the plaintiff in that case was the deceased victim's widow and not the estate. However, the plaintiff in Pontius was the administrator of the deceased victim's estate. In reversing the lower court's decision in our order filed in Pontius we relied on our opinion in Heffner v. Allstate Ins. Co. Our Supreme Court never directly addressed the question of whether a deceased victim's estate may recover under the No-fault Act, however, it did affirm both our decision in Heffner v. Allstate Ins. Co. and our order in Pontius. Furthermore, the Supreme Court adopted much of our opinion in Heffner v. Allstate Ins. Co. as its own. From the tenor of the Supreme Court's opinion in Allstate Ins. Co. v. Heffner, supra, and from its affirmance sub silentio in that case of our ...

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