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RICHARD J. MCCLAINE v. ALLSTATE INSURANCE COMPANY (07/22/83)

filed: July 22, 1983.

RICHARD J. MCCLAINE, JR. AND CLARISSA J. MCCLAINE, HIS WIFE, AS ADMINISTRATORS OF THE ESTATE OF PETER JAMES MCCLAINE, A MINOR, AND RICHARD J. MCCLAINE, JR. AND CLARISSA J. MCCLAINE, HIS WIFE, IN THEIR OWN RIGHT, APPELLANTS,
v.
ALLSTATE INSURANCE COMPANY



NO. 1164 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, of Butler County, at No. 80-793 - Book 119, Page 128.

COUNSEL

John W. Murtagh, Jr., Pittsburgh, for appellants.

Daniel R. Gigler, Pittsburgh, for appellee.

Rowley, Montemuro and Van der Voort, JJ.

Author: Per Curiam

[ 317 Pa. Super. Page 155]

On September 5, 1980, appellants Richard J. McClaine, Jr. and Clarissa J. McClaine, administrators of the estate and parents of the deceased minor child Peter J. McClaine, commenced an action against their insurance carrier, Allstate

[ 317 Pa. Super. Page 156]

Insurance Company. A two-count complaint was filed on January 14, 1981, demanding, inter alia, work loss benefits, survivor's loss benefits, and punitive and exemplary damages allegedly due under a policy of insurance covering the McClaines' automobile. Allstate filed a Preliminary Objection and Motion to Strike, arguing that neither count of the complaint stated a valid cause of action, that the complaint failed to allege that the plaintiffs were appropriate "survivors" of the decedent, and that the claim for punitive and exemplary damages based on the alleged bad faith of the insurance company was without legal or factual foundation. Appellants filed a response to the preliminary objections, and also filed an amended complaint. On November 25, 1981, the lower court granted appellee's preliminary objections, and dismissed appellants' complaint, finding:

1) that although the complaint asserted that appellants were dependent upon the deceased for support, because the complaint also asserted that the deceased was not employed fulltime, as a matter of law appellants could not be "survivors" within the meaning of the statute;

2) that since the deceased was a student and was not employed full-time at the time of his death, decedent did not suffer accrued economic detriment in the form of work loss; and

3) that Allstate had "acted properly" in denying appellants' claims for survivor's benefits and work loss benefits. The case is before us on appeal from the dismissal of appellants' complaint.

Appellants' first argument on appeal is that the lower court erred in dismissing their claim for survivor's loss benefits. In Chesler v. Government Employees Ins. Co., 302 Pa. Superior Ct. 356, 448 A.2d 1080 (1982), our court, sitting en banc, recently held that the parent of a deceased person was a ...


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