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filed: December 30, 1982.


No. 1582 Philadelphia, 1981, Appeal from the Order dated June 2, 1981, Court of Common Pleas, Philadelphia County, Civil Division, at No. 2382, October Term, 1979.


Nancy J. Gellman, Philadelphia, for appellant.

John M. Hickey, Broomall, for appellee.

McEwen, Johnson and Watkins, JJ.

Author: Johnson

[ 309 Pa. Super. Page 102]

This is an appeal by the insurance company (Aetna) from an order in the trial court granting Aetna's motion to amend its answer and new matter, denying Aetna's motion for summary judgment, granting appellee Lorraine Keaten's motion for judgment on the pleadings, and entering judgment for Ms. Keaten for work loss benefits, interest at

[ 309 Pa. Super. Page 103]

    the rate of 18%, and attorney's fees, pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act.*fn1

Appellee, Ms. Keaten, is the daughter of an automobile accident victim, Julia Eichler, insured by Aetna, who died on October 20, 1977, as a result of the injuries she received in an accident which took place on October 13, 1977. Pursuant to Ms. Eichler's policy with Aetna, Aetna paid funeral expenses, survivor's loss benefits, and work loss benefits in the amount of $66.24 for the period from the date of the accident to the date of Ms. Eichler's death.

On April 12, 1979, this court decided, in Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980), that the survivors of deceased accident victims could recover the work loss benefits to which they would be entitled if they were permanently disabled. On October 16, 1979, Ms. Keaten filed a complaint in assumpsit seeking the balance of the work loss benefits she claimed under the No-fault Act as interpreted in Heffner. Aetna's answer and new matter, filed February 14, 1980, denied liability for work loss benefits. On November 21, 1980, Ms. Keaten filed a motion for judgment on the pleadings citing the supreme court's decision affirming our decision in Heffner. Aetna accordingly filed a motion to amend its answer and new matter so as to assert as its affirmative defense that the rule of Heffner was not retroactive and therefore did not apply to a case such as this, where the victim died before this court's decision in Heffner. Aetna also filed a motion for summary judgment.

The trial court's order in response to these motions was based in part on the superior court's statement, in Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa. Super. 336, 423 A.2d 1284 (1980), that the Heffner decision did not change the law but merely interpreted the

[ 309 Pa. Super. Page 104]

    statute, and thus did not create a new right.*fn2 The trial court based its award of interest at 18% on the No-fault Act*fn3 and on a decision of the supreme court interpreting the applicable section.*fn4 The trial court awarded attorney's fees for the period of time starting when the Daniels decision was filed: "This court further finds that after December 27, 1980, the date the Superior Court's decision in Daniels was filed, [Aetna's] refusal to pay these work loss benefits was with absolutely no legal foundation and was totally unreasonable . . . . Consequently, plaintiff's counsel is entitled to counsel fees for work performed since December 29, 1980."*fn5

We have this day determined, in Baker v. Aetna Casualty & Surety Co.,*fn6 309 Pa. Super. 81, 454 A.2d 1092 (1982), that the decision in Heffner is indeed to be applied retroactively to all cases not barred by the applicable statute of limitations. The order of the trial court finding Heffner applicable and awarding work loss benefits and interest at 18% is therefore affirmed.

In Baker we upheld the trial court's determination awarding attorney's fees to the claimant, but vacated the amount of the award and remanded the case for a determination

[ 309 Pa. Super. Page 105]

    of reasonable fees consistent with that opinion. We therefore affirm the order of the lower court awarding attorney's fees "in an amount yet to be determined", but vacate the lower court's finding that the actions of the defendant were unreasonable only after December 29, 1980, and remand for a reconsideration of appellee's request for attorney's fees, consistent with the views expressed in Baker. The trial court is directed further to determine the amount of reasonable attorney's fees due appellee as a result of Aetna's continuing denial of the claim and its prolongation of this action through appeal. Jurisdiction is not retained.

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