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JOSEPH E. KENNY v. NATIONWIDE MUTUAL INSURANCE COMPANY (01/05/84)

submitted: January 5, 1984.

JOSEPH E. KENNY, JR., ADMINISTRATOR OF THE ESTATE OF JOSEPH F. KENNY, SR., DECEASED,
v.
NATIONWIDE MUTUAL INSURANCE COMPANY, APPELLANT



No. 2511 Philadelphia 1982, Appeal from the Judgment entered of November 9, 1982, in the Court of Common Pleas of Montgomery County, Civil No. 81-3333.

COUNSEL

Blake E. Dunbar, Jr., Norristown, for appellant.

Marc Robert Steinberg, Souderton, for appellee.

Wickersham, Olszewski and Roberts, JJ.

Author: Per Curiam

[ 326 Pa. Super. Page 126]

Once again, this Court is presented with a question under that embattled statute, the Pennsylvania No-fault Motor Vehicle Act.*fn1 The question before us today is whether the estate of a deceased victim is entitled to recover work loss benefits under the No-fault Motor Vehicle Act, which does not include "estate" in its definition of a "survivor."

[ 326 Pa. Super. Page 127]

The record discloses the following pertinent facts:

On December 7, 1979, the decedent of appellee, while a pedestrian, was struck by a vehicle insured by Nationwide Mutual Insurance Company, appellant. On December 23, 1979, he died solely and exclusively as a result of injuries sustained in the accident. At the time of the accident, appellee's decedent was single and the father of four children, three of whom were emancipated and receiving no support from the decedent. The fourth child was attending college and was receiving support from the decedent prior to his death; however, the appellee was unable to establish proof of dependency.

On February 21, 1980, Nationwide paid to appellee the sum of Two Hundred Eighty-six ($286.00) Dollars, reflecting decedent's lost wages from the date of the accident, December 7, 1979, until the date of death, December 23, 1979.

Appellee claimed entitlement to Fourteen Thousand Seven Hundred and Fourteen ($14,714.00) Dollars, representing the difference between the maximum work loss benefits payable under the No-fault Act*fn2 and the amount already paid by Nationwide, together with interest and attorney's fees.

On August 6, 1982, the Honorable Joseph Stanziani, of the Montgomery County Court of Common Pleas, entered a judgment in favor of the plaintiff for the above amount. It is from this judgment which this appeal has been filed. Appellant argues that since the language of the No-fault Act does not include "estate" in its definition of survivor, the appellee should be precluded from recovery.

The instant matter is controlled by Freeze v. Donegal Mutual Insurance Company, 301 Pa. Super.Ct. 344, 447 A.2d 999 (1982), ...


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