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SELWYN CHESLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (07/23/82)

filed: July 23, 1982.

SELWYN CHESLER, ADMINISTRATOR OF THE ESTATE OF BARRY C. CHESLER, DECEASED, APPELLANT,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY



No. 1005 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Division, Philadelphia County, at No. 343 October Term, 1979.

COUNSEL

Jeffrey M. Stopford, Philadelphia, for appellant.

David M. McCormick, Philadelphia, for appellee.

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

Author: Cercone

[ 302 Pa. Super. Page 358]

This appeal*fn1 presents us with two questions under the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn2

The first question presented is whether a deceased's estate, here represented by the deceased's mother as administrator of the estate, can collect "post mortem work loss benefits" under the No-fault Act.*fn3 The lower court ruled that it could not. We need not dwell on the matter since our holding in Freeze v. Donegal Mut. Ins. Co., 301 Pa. Superior Ct. 344, 447 A.2d 999 (1982) is controlling here. As mandated by our decision in that case, we reverse the order of the lower court as to work loss benefits.

We cannot so easily dispose of the second question presented here. That question is whether appellant can collect survivor's loss benefits under the No-fault Act.

The lower court set out the facts of the case as follows:

On January 9, 1979, Dr. Barry Chesler ("Decedent") was involved in an automobile accident that resulted in his death. At the time of his death he was a duly licensed medical doctor, serving his residency. He was single, without any children, and was survived by his mother who resides in South Africa.

[ 302 Pa. Super. Page 359]

Although the Decedent's mother was not financially dependent on him at the time of his death, she maintained that Decedent would have contributed some financial support toward her goal to immigrate to the United States. Therefore, she maintains that under the No-Fault Act, 40 P.S. 1009.101, et seq., she is entitled to the $15,000 policy limit covering work loss, and the $5,000 policy limit covering survivor's loss.

Although the parties had stipulated that appellant would have received in excess of $5,000 from her son had he survived the accident, the court denied both the work loss benefits and survivor's loss benefits because appellant was not dependent upon him for support at the time of his death. In reaching its decision the court relied on the case of Midboe v. State Farm Mut. Auto. Ins. Co., 8 D. & C.3d 83 (1978), which was affirmed per curiam and without opinion by a panel of this Court at 261 Pa. Superior Ct. 447, 395 A.2d 991 (1978).*fn4 The lower court's opinion in Midboe turned on Section 103 of the Act which defines "survivor" thus:

"Survivor" means:

(a) spouse; or

(b) child, parent, brother, sister or relative dependent upon the deceased for support.*fn5

The lower court in Midboe reasoned that "dependent" was intended to modify not only "relative" but "child, parent, brother, sister" as well. See Midboe v. State Farm Mut. Auto. Ins. Co., 8 D. & C.3d at 88-89. And see 40 P.S. ยง 1009.103 ("survivor"). In the instant case the court accepted the reasoning expressed in Midboe as persuasive, and accordingly denied appellant the survivor's loss benefits as well as the post-mortem work loss benefits she sought.

Subsequent to the lower court's decision in this case the Supreme Court considered Midboe. That court affirmed by an evenly divided court. See Midboe v. State Farm Mut. Auto. Ins. Co., 495 Pa. 348, 433 A.2d 1342 (1981). (Three

[ 302 Pa. Super. Page 360]

    justices in support of affirmance and three in support of reversal). However, we are not in any way bound by stare decisis to affirm the instant order based on the Supreme Court's disposition of Midboe, because the Supreme Court's split decision there carries no weight as precedent. See Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977).*fn6 Nor are we bound by this Court's panel decision in Midboe. An appellate court may affirm a lower court's decision on any basis and is not restricted to a reconsideration of the reasoning or law relied upon by the lower court.*fn7 Where a decision is rendered by the appellate court without an opinion it is impossible to tell on what that decision was based.*fn8 Therefore, any reliance on our earlier decision in Midboe, rendered as it was without an opinion, is tenuous at best.*fn9

We refer to the rules of statutory construction in order to determine whether the lower court erred in refusing appellant survivor's loss benefits. In construing the No-fault Act, as in the construction of any statute, we are guided by the dictates of the Statutory ...


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