October 7, 1983
KENNETH MOTLEY V. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT
No. 31 W.D. Appeal Docket, 1983, Appeal from Order of Superior Court at No. 598 Pittsburgh, 1981, entered August 6, 1982, Pa. Super. ,
Before Roberts, C.j., Nix, J., Larsen, J., Flaherty, J., McDERMOTT, J., Hutchinson, J., and Zappala, J. Mr. Justice McDERMOTT and Mr. Justice Hutchinson join in this opinion.
I would reverse the award of attorney fees against appellant State Farm Mutual Automobile Insurance Company, for it cannot fairly be said that appellant denied the present claim "without reasonable foundation." Pennsylvania No-Fault Insurance Act, Act of July 19, 1974, P.L. 489, § 107(3), 40 P.S. § 1009.107(3) (Supp. 1983). Prior to today's decision, the Superior Court had resolved the issue of the proper means of computing work-loss benefits in a manner consistent with the position taken by appellant in this case.See Ceccotti v. Nationwide Insurance Co., Pa. Super. , 455 A.2d 199 (1983). Additionally, although the Opinion of Mr. Justice Larsen characterizes the issue of whether appellant is at all liable to appellee as being "controlled by our decision" in Wagner v. National Indemnity Co., 492 Pa. 154, 426 A.2d 106 (1980), in fact, no opinion filed in that case represented the view of a majority of this Court: The lead opinion of Justice O'Brien was joined only by this writer and by Mr. Justice Nix; then Chief Justice Eagen concurred in the result reached by the lead opinion but not its reasoning, and Mr. Justice Larsen, Mr. Justice Flaherty, and Justice Kauffman filed dissenting opinions. Because appellant was justified in denying a claim for no-fault benefits when that claim was predicated on a plurality opinion of this Court whose only effect was to adjudicate the rights of the parties to that case, the award of attorney fees was without foundation and should be reversed.*fn*
I join in the mandate and the opinion of Mr. Justice Larsen in all other respects.
Mr. Justice McDERMOTT and Mr. Justice HUTCHINSON join in this opinion.