No. 2650 Philadelphia 1981, Appeal from the Order of October 6, 1981 in the Court of Common Pleas of Monroe County, Civil Division, at No. 600 April Term, 1979.
Randolph T. Borden, Hawley, for appellant.
Joseph J. O'Brien, Jr., Scranton, for appellees.
Spaeth, President Judge, and Wickersham, Brosky, Rowley, Wieand, Johnson and Hoffman, JJ. Johnson, J. filed a concurring and dissenting opinion.
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This appeal concerns appellant's denial of appellees' claims for survivor's and work loss benefits pursuant to the
[ 327 Pa. Super. Page 30]
Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., (No-fault Act) arising from the untimely death of their son. Upon review, we find appellees' $5,000 claim for survivor's benefits barred by the applicable statute of limitations; however, we conclude that the work loss claim was timely filed and, accordingly, affirm the $15,000 work loss award.
The decedent, appellees' son, was fatally injured in an automobile accident occurring on March 23, 1977. Decedent's estate recovered $1,500 for funeral expenses from appellant, decedent's insurer. On May 30, 1979, appellees, individually and as administrators of decedent's estate, brought suit against appellant and on October 2, 1979, filed a complaint alleging entitlement to survivor's and work loss benefits under the No-fault Act. Appellant filed on December 14, 1979 a motion for summary judgment based on the No-fault statute of limitations but, subsequent to a hearing, the lower court denied appellant's motion. Following a non-jury trial, the lower court on June 26, 1981, awarded appellees $5,000 in survivor's benefits and $15,000 in work loss benefits, plus interest. Appellant's exceptions to the order were argued before and denied by the lower court en banc. This appeal followed.
Initially, appellant is correct in arguing, and appellees effectively concede, that appellees' claim for survivor's benefits is barred by § 106(c)(2) of the No-fault Act. In Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 500 Pa. 167, 455 A.2d 101 (1982), our Supreme Court held that "§ 106(c)(2) covers no-fault benefits, including funeral expenses which, like wrongful death damages, are designed to compensate the insured's survivors for the loss they suffer by his death . . . ." Id., 500 Pa. at 174, 455 A.2d at 105. 40 P.S. § 1009.106(c)(2) provides, in pertinent part:
If survivor's benefits have been paid to any survivor, an action for further survivor's benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits.
[ 327 Pa. Super. Page 31]
In the instant case, appellees recovered $1,500 for funeral expenses by check dated April 21, 1977, and cashed on or about April 27, 1977. Appellees' action for additional survivor's benefits under the No-fault Act was not commenced until May 31, 1979, clearly more than two years after the estate's recovery for funeral expenses. Accordingly, we agree with appellant that appellees' current claim for survivor's benefits is unquestionably barred by the No-fault statute of limitations.
Appellant contends also that appellees are similarly barred by the statute of limitations from collecting work loss benefits due to decedent's estate. Section 106(c)(1) provides the applicable statute of limitations for actions seeking benefits intended to compensate the insured or his estate. Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., supra. Additionally, because only funeral benefits, arising from loss caused by death, have been paid in ...