Mark E. McKinney, Pittsburgh, for appellants.
Richard J. Federowicz, Pittsburgh, for appellee.
Wieand, Johnson and Montemuro, JJ.
[ 305 Pa. Super. Page 354]
Robert Daniels was killed on April 30, 1977 when an uninsured truck in which he was riding as a passenger left the road and collided with a utility pole. He was survived by a wife and son. A claim was made for survivor's loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act*fn1 and assigned to State Farm Mutual Automobile Insurance Company under Section 108 of the Act.*fn2 When the claim was denied, an action in assumpsit was commenced to recover survivor's loss benefits, plus attorney's fees and costs. The assumpsit action resulted in the entry of a summary judgment in favor of the decedent's wife and child. That judgment was affirmed on appeal. Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa. Super. 336, 423 A.2d 1284 (1980).
Eight days after the trial court had entered summary judgment, the Superior Court filed its opinion in Heffner v. Allstate Insurance Company, 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). Because of the decision in Heffner, decedent's widow and son requested the Superior Court in which the direct appeal was pending to remand the action in order to permit a claim for work loss benefits. The Superior Court denied the request, holding:
". . . Heffner did not change the law; it rather decided an issue of statutory construction not previously decided by an appellate court. Such an interpretation of legislative intent is regarded as part of a statute from the time the statute was enacted. Harry C. Erb, Inc., v. Schell Construction Co., Inc., 206 Pa. Super. 388, 213 A.2d 383 (1965); Buradus v. General Cement Products, 356 Pa. 349, 52 A.2d 205 (1947). Thus, our decision in Heffner did not create a new right to work loss benefits. That right existed all along. Contrary to appellee's suggestion, in Heffner we
[ 305 Pa. Super. Page 355]
did not redefine survivor's loss; we simply analyzed the distinctions between work loss and survivor's loss, noting that in the case of a deceased victim the work loss claim is comparable to a survival action and the survivor's loss claim is comparable to a wrongful death action. 265 Pa. Super. at 181; 401 A.2d at 1164-1165; See also,  Pa. at , 421 A.2d at 636 (Supreme Court slip op. at 13-15). So viewed, work loss benefits are a separate type of benefit, which in the present case might have been claimed but were not; the complaint only claimed survivor's loss benefits, in the maximum amount of $5,000, and judgment in that amount was entered.
In these circumstances, remand to permit a claim to be made for work loss benefits would be unwarranted. If such a claim is to be made, it must be by a separate action. We intimate no opinion as to what the outcome of such an action should be.
Daniels v. Allstate Insurance Co., supra, 283 Pa. Superior Ct. at 343-344, 423 A.2d at 1288.
After the direct appeal had been decided, the present appellants, despite the holding of the Superior Court, nevertheless filed a separate petition in the trial court requesting that they be allowed to file an amended complaint in the assumpsit action in order to assert a claim for work loss benefits. The petition was denied, and this appeal followed. We affirm.
The trial court correctly observed that when this case was previously before the Superior Court, a panel denied appellants' request that the action be remanded to allow an amendment. The prior decision of this Court was the law of the case and prevented the trial court from re-opening the instant litigation. Albright v. Wella Corporation, 240 Pa. Super. 563, 567, 359 A.2d 460, 463 (1976). "A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any ...