NO. 934 PHILADELPHIA, 1982, Appeal from the Order of February 23, 1982 In the Court of Common Pleas of Philadelphia County, Civil at No. 2708 July Term, 1980
Alexander Kerr, Philadelphia, for appellant.
George J. O'Neill, Philadelphia, for appellees.
Hester, Brosky and Beck, JJ.
[ 321 Pa. Super. Page 135]
This appeal arises from a denial of Allstate Insurance Company's motion to amend its pleadings in an action initiated by Hermine E. Tanner et al. for benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act. For the reasons that follow, we modify the lower court's order in order to allow one of the requested amendments.
Alicia M. Tanner died in an automobile accident on March 14, 1977, in which her parents Hermine and Willie Tanner, and her sister Gloria Tanner were also injured. The Tanners' insurance carrier, Allstate, paid $5,785.70 to the estate of Alicia for funeral, medical and hospital expenses. The last payment with respect to Alicia was made on May 5, 1978.
More than two years after this last payment, on June 24, 1980, an action was initiated by Hermine E. Tanner as administratrix of the estate of Alicia, and Hermine E. Tanner, Willie Tanner and Gloria Tanner individually, for work loss benefits, survivors' benefits, attorney fees, interest, and punitive damages against Allstate. Allstate filed an answer and new matter denying liability on August 19, 1980. A reply from the Tanners followed on August 22, 1980.
On February 3, 1981, a little less than six months after filing the initial answer and new matter, Allstate filed a motion to amend its pleadings. The motion states that after the original answer had been filed, the Supreme Court
[ 321 Pa. Super. Page 136]
issued on September 22, 1980 its decision in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), affirming this Court in Heffner v. Allstate Insurance Company, 265 Pa. Super. 181, 401 A.2d 1160 (1979). Heffner allowed both work loss benefits and survivors' benefits to survivors of a person fatally injured in an automobile accident. Allstate wished to amend its pleadings to assert certain defenses not presented in its original answer or new matter. Specifically, Allstate wanted to include the following in its amended pleadings:
(1) The Heffner decisions are not retroactive and do not apply to the instant case in which the plaintiff died before these decisions were filed.
(2) The Tanners are not survivors within the meaning of 40 Pa.S. § 1009.103 and are therefore not entitled to ...