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SELWYN CHESLER v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (12/30/83)

decided: December 30, 1983.

SELWYN CHESLER, ADMINISTRATOR OF THE ESTATE OF BARRY C. CHESLER, DECEASED
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, APPELLANT



No. 101 E.D. Appeal Dkt. 1982, Appeal from Order of Superior Court at No. 1005 Philadelphia, 1980, entered July 23, 1982, Roberts, C.j., and Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., did not participate in the consideration or decision of this case. Hutchinson, J., files a concurring opinion. Larsen, J., files a dissenting opinion.

Author: Roberts

[ 503 Pa. Page 293]

OPINION OF THE COURT

Appellant Government Employees Insurance Company appeals from an order of the Superior Court reversing an order of the Court of Common Pleas of Philadelphia which dismissed the petition of appellee Selwyn Chesler to compel the payment of "survivor's loss" benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July

[ 503 Pa. Page 29419]

, 1974, P.L. 489, § 101 et seq., 40 P.S. § 1009.101 et seq. (Supp.1983). Appellee is the mother of Barry Chesler, who was killed in an automobile accident while insured under a no-fault automobile insurance policy issued by appellant. Appellee, who has not shown that she was dependent upon her son, contends that she need not prove dependency in order to receive survivor's benefits under the Act.

We hold that section 103 of the Act, 40 P.S. § 1009.103, requires a "child, parent, brother, [or] sister" of a deceased victim of an automobile accident to show dependency on the victim as a condition of eligibility for survivor's loss benefits. See Midboe v. State Farm Mutual Automobile Insurance Co., 495 Pa. 348, 433 A.2d 1342 (1981) (O'Brien, C.J., joined by Roberts & Flaherty, JJ., in support of affirmance). Section 103 defines a "survivor" as a

"(A) spouse; or

(B) child, parent, brother, sister or relative dependent upon the deceased for support."

As stated in Midboe, supra, "if the Legislature had intended that only [a] 'relative' need prove dependency on the deceased, it could have included 'child, parent, brother or sister' in subsection (A) with 'spouse'." 495 Pa. at 357, 433 A.2d at 1347.

The order of the Superior Court reversing the order of the court of common pleas which dismissed the petition to compel the payment of survivor's loss benefits is reversed.

HUTCHINSON, Justice, concurring.

I concur in the result. This Court construed Section 103 of the Pennsylvania No-Fault Motor Vehicle Insurance Act,*fn1 in Midboe v. State Farm Mutual Auto Insurance Co., 495 Pa. 348,

[ 503 Pa. Page 295433]

A.2d 1342 (1981) (" Midboe "), a case involving factual circumstances similar to those present in the case hereunder consideration. I agree with Former Chief Justice O'Brien's construction of Section 103 set forth in an opinion in support of affirmance in Midboe in which Mr. Justice, now Chief Justice, Roberts and Mr. Justice Flaherty joined. There Justice O'Brien determined that the legislature intended the phrase "dependent upon the deceased for support" to modify all the antecedents contained in subsection (B).

Justice O'Brien correctly observed that rules of statutory construction are inapplicable where the intent of the legislature is clear from the language of the provision in question read in the context of the entire statutory scheme. Accordingly, in declining to apply the last antecedent rule, he noted that:

"The [last antecedent] rule is but another aid to discovery of intent or meaning, however, and not an inflexible and uniformly binding rule. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent . . . . When several words are followed by a [modifying phrase], which is applicable as much to the first and other words as ...


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