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TOYOKA LAROCCA v. AETNA LIFE AND CASUALTY COMPANY (09/17/82)

SUPERIOR COURT OF PENNSYLVANIA


decided: September 17, 1982.

TOYOKA LAROCCA, SAM LAROCCA AND TOYOKA LAROCCA, AS ADMINISTRATRIX OF THE ESTATE OF SCOTT ANTHONY LAROCCA, DECEASED, APPELLANTS
v.
AETNA LIFE AND CASUALTY COMPANY, INC., A CORPORATION

No. 799 Pittsburgh, 1981, Appeal from the Order of June 29, 1981, Court of Common Pleas, Civil Action, Equity, Allegheny County at No. GD80-17808.

COUNSEL

Karl W. Wiedt, Pittsburgh, for appellants.

James F. Manley, Pittsburgh, for appellee.

Spaeth, Johnson and Hoffman, JJ.

Author: Johnson

[ 304 Pa. Super. Page 422]

Appellants have appealed from the Order of the lower court dated June 29, 1981, which (1) granted judgment in favor of Aetna Life and Casualty Company, Inc. (Aetna) on Appellants' claims for work loss and survivor's loss benefits under the No-fault Motor Vehicle Insurance Act,*fn1 (2) dismissed Appellants' claims for those benefits as untimely and, (3) overruled Aetna's Motion for Judgment on the Pleadings with respect to Appellants' claims for allowable expense limits related to funeral and burial expenses.

Appellants entered suit by Writ of Summons on July 23, 1980 against Aetna, following the death on August 13, 1978 of their son, who died as a result of injuries suffered in an automobile accident. The decedent was a passenger in the vehicle of Christine Leo, who was insured by Aetna. Appellants and decedent were not covered by any motor vehicle insurance. Appellants' Complaint in Assumpsit requested payment of (1) $15,000 in work loss benefits, (2) $5,000 in survivor's loss benefits, (3) $3,402.00 as reimbursement for

[ 304 Pa. Super. Page 423]

    funeral expenses, and (4) interest, costs and attorney's fees. The Complaint further alleged that demands for these sums had been refused by Aetna.*fn2

Aetna's Answer and New Matter alleged that Appellants were not entitled to any benefits and further, that Appellants' cause of action was barred by the statute of limitations of the No-fault Act, 40 P.S. 1009.106(c)(2).

Appellants argue on appeal*fn3 that the lower court erred in determining that the appropriate statute of limitations concerning recovery of work loss benefits claimed on behalf of a deceased victim*fn4 under the No-fault Act (hereinafter the Act) was one year.

[ 304 Pa. Super. Page 424]

We have previously stated that post-mortem work loss benefits are recoverable by the survivors of the deceased victim, but are not considered survivor's benefits under the Act. Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 293 Pa. Super. 483, 439 A.2d 678 (1981), citing Allstate Insurance Company v. Heffner,*fn5 491 Pa. 447, 421 A.2d 629 (1980); Daniels v. State Farm Mutual Automobile Page 424} Insurance Company, 283 Pa. Super. 336, 423 A.2d 1284, 12 A.L.R. 4th 968 (1980).

The issue now before us has recently been decided in Guiton v. Pennsylvania National Mutual Casualty Insurance Company, 301 Pa. Super. 146, 447 A.2d 284 (1982). This court in Guiton held that the proper statute of limitations for recovery of work loss benefits involving a deceased victim where no previous work loss benefits have been paid is the six year limitation period for general contract actions.

Therefore, the Order of June 29, 1981 is reversed as to the granting of judgment in favor of Appellee and as to the dismissal of Appellant's claim for work loss benefits and the case remanded for further proceedings not inconsistent with this opinion.


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