No. 2883 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Trial Division, Civil Section, of Philadelphia County, May Term, 1981, No. 2276.
Richard T. Abell, Philadelphia, for appellant.
Stephen C. Josel, Philadelphia, for appellee.
Cavanaugh, Rowley and Hoffman, JJ.
[ 322 Pa. Super. Page 98]
This is an appeal from an order of the trial court granting appellee's motion for summary judgment and awarding the estate of the minor decedent work loss benefits in the amount of $15,000.00 plus eighteen percent annual interest under the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. §§ 1009.101 et seq. (Supp. 1983-84).
Appellee Joanne Fox is the administratrix of the estate of Shirl Morrissey who died from injuries sustained when she was struck by an automobile driven by an insured of Appellant, State Farm Mutual Automobile Insurance Company. At the time of her death, the decedent was either three or five years old; the record is not clear on the point. Appellee presented a claim to State Farm for medical expenses,*fn1 funeral costs,*fn2 and survivor's*fn3 and work loss*fn4 benefits under the No-Fault Act. State Farm paid the first two items, but denied liability for survivor's loss and work loss benefits. The claim for survivor's loss benefits was later abandoned. Appellee commenced this action against
[ 322 Pa. Super. Page 99]
State Farm by filing a complaint in assumpsit alleging that State Farm was liable to the estate for the payment of No-Fault work loss benefits. Following the filing, by State Farm, of an answer and new matter denying liability, appellee filed a motion for summary judgment. The trial court granted the motion, stating that the maximum work loss benefits of $15,000.00, provided for by the Act were due and payable in twelve equal monthly installments commencing thirty days after the date of the decedent's death. The court also directed State Farm to pay the statutory rate of interest of eighteen percent per year. This appeal followed.
State Farm raises five issues for our consideration: (1) May the estate of a minor collect post-mortem work loss benefits under the No-Fault Act although the child never worked and there is no showing of dependency? (2) "[I]f any No-Fault wage loss benefits must be paid are the work loss payments due without regard to the time when the particular decedent would have had a probable annual income?" (3) Is summary judgment an appropriate method of determining the amount of No-Fault work loss benefits when the decedent's probable annual income is in dispute? (4) "Is the Pennsylvania Supreme Court decision in Allstate Insurance Company v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), to be applied retroactively to a case where the death occurred prior to the decision of the Supreme Court?" (5) If any benefits are or have been due, what is the proper method of calculation of interest in this case?
The first and fourth issues raised by State Farm have been previously raised and decided adversely to it. In Allstate Insurance Company v. Heffner, supra, the Supreme Court of Pennsylvania held that the estate of a deceased adult victim of a motor vehicle accident was entitled to recover work loss benefits under the Act. In Freeze v. Donegal Mutual Insurance Co., 301 Pa. Super. 344, 447 A.2d 999 (1982), allocatur granted 11/5/82, an en banc
[ 322 Pa. Super. Page 100]
panel of our court, following Heffner, held that the estate of a deceased eleven year old with no work history was entitled to recover work loss benefits. The Court said that there need be no showing of dependency because that issue is "more properly a question concerning survivor's loss benefits." Id., 301 Pa. Superior Ct. at 354 n. 9, 447 A.2d at 1004 n. 9. Furthermore, there is no necessity that the deceased have an actual work history because § 205(c) of the Act, 40 P.S. § 1009.205(c) (Supp. 1983-84), specifically sets forth a formula by which work loss benefits may be calculated for "a victim who is not employed when the accident resulting in injury occurs." See also: Hartleb v. Ohio Casualty Insurance Co., 305 Pa. Super. 231, 451 A.2d 506 (1982); Miller v. United States Fidelity and Guaranty Co., 304 Pa. Super. 43, 450 A.2d 91 (1982), allocatur granted, and Chesler v. Government Employees Insurance Co., 302 Pa. Super. 356, 448 A.2d 1080 (1982), allocatur granted November 5, 1982.
As to State Farm's claim that Heffner should not be applied retroactively to accidents which occurred prior to the decision in that case, our Court, in Baker v. Aetna Casualty & Surety Co., 309 Pa. Super. 81, 454 A.2d 1092 (1982), held otherwise. Also see: Shomper v. Aetna Life & Casualty Co., 309 Pa. Super. 97, 454 A.2d 1101 (1982); Keaten v. Aetna Life & Casualty Insurance Co., 309 Pa. Super. 101, 454 A.2d 1102 (1982); Thomas v. Aetna Casualty & Surety Co., 309 Pa. Super. 105, 454 A.2d 1105 (1982); Freeman v. Allstate Insurance Co., 309 Pa. Super. 108, 454 A.2d 1106 (1982); Giles v. Allstate Insurance Co., 309 Pa. Super. 111, 454 A.2d 1108 (1982); Rittner v. Aetna Life & Casualty Insurance Co., 309 Pa. Super. 114, 454 A.2d 1109 (1982). As Judge Johnson stated for the court in Baker:
[I]n Heffner we decided an issue of statutory construction. We created no new right, and made no change in the law.
309 Pa. Super. at 91, 454 A.2d at 1097.
[ 322 Pa. Super. Page 101]
For these reasons, the trial court correctly held that appellee was entitled to claim work loss benefits from appellant and, when the claim was denied, ...