No. 01122 Pittsburgh 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. G.D. 82-3366.
Frank M. Gianola, Pittsburgh, for appellant.
Sanford M. Aderson, Pittsburgh, for appellee.
Rowley, Johnson and Popovich, JJ.
[ 328 Pa. Super. Page 534]
This is an appeal from the Order of the Court of Common Pleas of Allegheny County granting "partial summary judgment" in favor of the plaintiff-Robert L. Gray, Jr., and against the defendant-State Farm Mutual Automobile Company. We quash.
On February 10, 1982, the plaintiff, as the administrator of the estate of Robert J. Gray, III, filed a complaint in assumpsit seeking, pursuant to the decedent's policy of insurance with the defendant, "work loss benefits in the amount of $15,000.00" and "survivor's loss benefits in the amount of $5,000.00."
In answer, the defendant averred in "New Matter" that the plaintiff was not entitled to work loss benefits or survivor's benefits under Pennsylvania's No-Fault Motor Vehicle Insurance Act (40 Pa.S.A. § 1009.101 et seq.) on the grounds that, inter alia:
1. . . . Plaintiff is not a spouse of the deceased insured and/or relative dependant [sic] upon the deceased insured for support at the time of death.
2. Neither the No-Fault Act nor the case law propogated thereunder, provides that the estate of a deceased insured is entitled to work loss benefits or survivors [sic] loss benefits.
10. Plaintiff is not entitled to recover attorneys [sic] fees incurred in obtaining any benefits which ultimately may be paid by defendant, since defendant's withholding of said benefits was made in good faith for reasonable cause.
Further, as to the extent that the Supreme Court's ruling in Heffner v. Allstate, 491 Pa. 447, 421 A.2d 629 (1980), might warrant a different result, the defendant urged that retroactive application of Heffner would be unconstitutional and violative of equitable principles.
In "Answer To New Matter," the plaintiff alleged that he was entitled to the benefits ...