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SHIRLEEN BAKER v. AETNA CASUALTY & SURETY COMPANY (12/30/82)

filed: December 30, 1982.

SHIRLEEN BAKER, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF H. EARL BAKER, DECEASED, AND PETRUSH & MILLER, LTD.
v.
AETNA CASUALTY & SURETY COMPANY, APPELLANT



No. 561 Pittsburgh, 1981, Appeal from the Orders dated April 22, 1981 and April 30, 1981, Court of Common Pleas, Civil Action, Beaver County, at No. 876 of 1980.

COUNSEL

Nancy J. Gellman, Philadelphia, for appellant.

John Miller, Beaver Falls, for appellee.

McEwen, Johnson and Watkins, JJ.

Author: Johnson

[ 309 Pa. Super. Page 84]

The orders appealed from granted plaintiff-appellee's motion for summary judgment in her suit against the appellant insurance company [Aetna] for work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act [No-fault Act],*fn1 following the death of her husband in an automobile accident. The orders also awarded interest on the benefits to be paid at the rate of 18%, and attorney's fees, and denied Aetna's cross-motion for summary judgment.

Appellee [Shirleen Baker] brought suit in assumpsit, individually and as administratrix of her husband's estate, after the denial by Aetna of her claim for work loss benefits. The date of the fatal accident was February 10, 1978. On April 12, 1979, this court ruled that a widow whose husband was killed in an automobile accident was entitled under the No-fault Act to recover the work loss benefits which he would have recovered under his insurance contract if he had been permanently disabled. Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa.

[ 309 Pa. Super. Page 85447]

, 421 A.2d 629 (1980) [hereinafter Heffner ]. On April 18, 1979, appellee presented a claim to Aetna for work loss benefits, under the rule of Heffner. By letter dated August 10, 1979, Aetna denied the claim for work loss benefits on the grounds that it did "not accept [Heffner] as the law of Pennsylvania".*fn2 Mrs. Baker's complaint was thereafter filed on May 13, 1980. The supreme court's opinion affirming this court's decision in Heffner was filed on September 22, 1980.

The trial court awarded the work loss benefits, relying on Heffner, which, as is explained in the opinion by Judge WALKO, it determined should be applied retroactively to cases where the cause of action accrued before the decision but where the complaint was filed after the decision.*fn3 The trial court based its award of interest on the applicable section of the No-fault Act, 40 P.S. § 1009.106(a)(2), and on the decision of our supreme court in Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). The trial court based its award of attorney's fees on the No-fault Act § 1009.107(3), finding that Aetna's denial of the claim was without reasonable foundation.

I.

The Retroactivity of Heffner.

In Pennsylvania, judicial decisions are normally retroactive, and the construction placed by the court upon a

[ 309 Pa. Super. Page 86]

    statute becomes part of the act from the very beginning. August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981); Buradus v. General Cement Products Co., 159 Pa. Super. 501, 48 A.2d 883 (1946), aff'd, 356 Pa. 349, 52 A.2d 205 (1947).*fn4 A court's interpretation will be applied to cases arising from the time of the enactment of the statute unless vested rights are affected. Ettinger v. Central Penn National Bank, 634 F.2d 120 (3d Cir.1980); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966).

In two recent cases in Pennsylvania where our supreme court ruled that its decision was to be applied prospectively only, the court made it quite clear that prospective application of a new rule is still the exception rather than the usual practice. See Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971) (supreme court adopted the net earnings measure of damages in survival actions, overruling century-old rule that damages were to be awarded on the basis of the decedent's gross earnings). In deciding to make the new rule purely prospective the court said:

[W]e do not treat this portion of our opinion as establishing a precedent for a general use of the prospective application technique. That the application is unusual and should be used but sparingly we candidly admit. We are mindful, however, of more than the deserving efforts of appellants in seeking renovation of an unsound or outmoded legal proposition; we look to the ultimate justice of the particular case before us. We must attempt to weigh the equities and determine the injustice caused by

[ 309 Pa. Super. Page 87]

    allowing the century-old Radobersky rule its one last gasp in a case where the justified expectations of the plaintiffs would otherwise be defeated.

Incollingo v. Ewing, 444 Pa. at 311, 282 A.2d at 230. See also, Catherwood's Trust, 405 Pa. ...


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