Nos. 246, 247 and 248, Harrisburg 1982, Appeal from the Orders of: June 9, 1982, June 10, 1982 and June 25, 1982 in the Court of Common Pleas of Dauphin County, Civil No. 5116 S 1978.
Morris M. Shuster, Philadelphia, for appellant.
Neil J. Rovner, Harrisburg, for Wilson, appellee.
James J. McCabe, Jr., Philadelphia, for State Farm, appellee.
Wickersham, Del Sole and Montemuro, JJ. Del Sole, J., files dissenting opinion.
[ 339 Pa. Super. Page 578]
Before us are consolidated appeals from orders entered on June 9, 1982, denying Richard Neyhard's [hereinafter "appellant"] petition to intervene in the above-captioned class action and dismissing his objections to the proposed settlement therein. The appellant further challenges the order entered on June 10, 1982, approving the settlement as to subclass three.*fn1 All three orders were entered by the Honorable William W. Lipsitt of the Court of Common Pleas of Dauphin County.
On November 14, 1978, Cynthia Wilson, as administratrix of the estate of Keith Wilson, her deceased husband, [hereinafter "Wilson"] commenced an action against State Farm Mutual Insurance Company [hereinafter "State Farm"]
[ 339 Pa. Super. Page 579]
seeking to recover post-mortem work loss benefits due from State Farm as a result of the death of her husband in a motor vehicle accident. These benefits were sought pursuant to the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn2 On November 3, 1980, Wilson filed a class action complaint on behalf of herself and all previously employed Pennsylvania residents, insured by State Farm, who sustained fatal injuries in motor vehicle accidents within two years prior to the date of her husband's death.
By order of the Court of Common Pleas of Dauphin County, dated July 20, 1981, the following two subclasses were "conditionally" certified pursuant to Pa.R.Civ.P. 1702:
(1) When a deceased motor vehicle accident victim is survived solely by a spouse or solely by a spouse and minor children or solely by minor children, these survivors shall constitute a subclass.
(2) When a deceased motor vehicle accident victim is not survived by a spouse or by minor children, but is survived solely by other "survivors" delineated in § 103 of the Act*fn3 and these other "survivors" have been recognized by the insurance carrier as dependent, either by the carrier's having paid them "survivor's loss" benefits or otherwise, then these other survivors shall constitute a subclass.
Wilson v. State Farm Mutual Insurance Company, 103 Dauph.C.Rep. 25, 28 (1981). The court further stated, "Our organization of the class into these subclasses has been carefully scrutinized to sift out cases in which an initial inquiry on dependency is necessary." Id at . The court's reluctance to include cases in which a claimant's dependency was in question stemmed from a recognized lack of commonality of law and fact between these cases and those of the certified subclasses and from the uncertainty
[ 339 Pa. Super. Page 580]
of the law regarding the recoverability of post mortem work loss benefits by estates and non-dependents.*fn4
Following this certification, State Farm provided Wilson with a list of the names of individuals who State Farm believed fell within the two subclasses. The court approved a notice which was sent to all the individuals appearing on the list. The notice informed the recipients that they might be entitled to benefits if they were a spouse, dependent child, or dependent relative of an insured person killed in a motor vehicle accident within approximately a six (6) year period. Unfortunately, fifty-three (53) individuals mistakenly received identical notices despite the fact that those individuals were not within the enumerated categories. These fifty-three (53) recipients are best described as persons representing decedents who had no "survivors" as that term is defined in the Pennsylvania No-Fault Motor Vehicle Insurance Act.*fn5
Meanwhile, the appellant instituted a separate class action in the Court of Common Pleas of Philadelphia County, Neyhard v. State Farm Mutual Insurance Company, March Term 1981, No. 608. The appellant is the father and administrator of the estate of Christopher Neyhard, an employed young man who, following a fatal automobile accident, left no dependent "survivors". The Neyhard complaint sought recovery of post mortem work loss benefits for all estates and/or survivors of decedents killed in motor vehicle accidents and insured by State Farm.*fn6 This action has been temporarily stayed.
Given the definition of the two certified subclasses, the appellant was patently not a member and it appeared that neither he nor the class of other non-dependents he represented
[ 339 Pa. Super. Page 581]
would be impacted by a resolution of the ...