No. 1819 Philadelphia, 1981, Appeal from the order dated June 23, 1981, Court of Common Pleas, Lycoming County, Civil Action-Law, at No. CV-80-0366.
James J. McCabe, Philadelphia, for appellant.
John F. Campana, Williamsport, for appellee.
McEwen, Johnson and Watkins, JJ.
[ 309 Pa. Super. Page 54]
The order appealed from granted appellee's motion for partial summary judgment and awarded her the work loss benefits which she claimed due her under the Pennsylvania No-fault Motor Vehicle Insurance Act*fn1 [No-fault Act].
Appellee is the widow and executrix of the estate of Leonard R. Minier, Sr., who died in a motor vehicle accident on April 15, 1978. At the time of the accident the decedent was insured by the appellant insurance company [State
[ 309 Pa. Super. Page 55]
Farm]. Under the policy State Farm paid certain no-fault benefits -- survivor's loss, funeral expenses and medical expenses -- but denied Mrs. Minier's claim for work loss benefits. On December 3, 1980, therefore, Mrs. Minier filed a complaint seeking the work loss benefits which the appellate courts of this commonwealth had determined were due the survivors of deceased motor vehicle accident victims. See Heffner v. Allstate Insurance Co., 265 Pa. Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). In its answer and new matter State Farm asserted firstly that Heffner should not be applied retroactively, secondly that because the decedent had retired from his employment and was on a pension, there was no work loss for which benefits should be paid, and thirdly that the survivor's loss benefits paid should be excluded from any work loss benefits. These same three issues are raised before this court in State Farm's appeal from the order granting partial summary judgment in Mrs. Minier's favor.*fn2
This court has decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa. Super. 81, 454 A.2d 1092 (1982), that the decision in Heffner, supra, is to be applied retroactively to all cases not barred by the applicable statute of limitations. We do not need to discuss this issue further. Appellant's first contention, therefore, fails.
The issue of whether or not there should be a recovery of work loss benefits under the No-fault Act where the decedent had retired from employment has not been decided by an appellate court. The lower court responded to State Farm's assertion -- that retired persons are not entitled to work loss benefits -- by stating that it was aware of no authority for such an assertion, which it considered to fly in the face of the language of the No-fault Act providing for recovery of work loss benefits even where there is no work history on the part of the decedent.*fn3
[ 309 Pa. Super. Page 56]
We agree. State Farm provides us with no authority for its position, other than the absence of language concerning retired persons in the No-fault Act. In Article II of the No-fault Act, concerning the right to benefits, the legislature described the method of calculating work loss benefits for certain categories of victims, namely those "regularly employed", "seasonably employed" and "not employed". 40 P.S. § 1009.205. The calculations involve a determination of "probable weekly income." For those victims who are unemployed at the time of the accident the following method is described:
(c) Not employed. -- The work loss of a victim who is not employed when the accident resulting in injury ...