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PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. MILLARD A. FERTIG (03/06/89)

filed: March 6, 1989.

PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, APPELLANT,
v.
MILLARD A. FERTIG, APPELLEE



Appeal from Order of the Court of Common Pleas, Civil Division, of Dauphin County, No. 2983 S 1986.

COUNSEL

Thomas E. Brenner, Harrisburg, for appellant.

Robert W. Barton, Harrisburg, for appellee.

Wieand, Olszewski and Tamilia, JJ. Olszewski, J., files a dissenting statement.

Author: Wieand

[ 382 Pa. Super. Page 336]

The issue in this appeal is whether a no-fault insurance carrier is required to pay room charges in a nursing home where the insured, who is now a quadriplegic, is being maintained. The trial court entered a declaratory judgment in favor of the insured. We reverse.

On February 2, 1984, Millard A. Fertig was seriously injured when the stopped vehicle in which he was seated was struck in the rear by a moving vehicle. He sustained a traumatic subluxation of the third and fourth cervical vertebrae. Fertig was a patient at the Polyclinic Medical Center in Harrisburg from February 2, 1984 until April 19, 1984, when he was transferred to that institution's Memorial Building for further care. On June 8, 1984, Fertig was discharged to his home with special equipment and eight hour a day nursing care. His health deteriorated, however, and on August 26, 1984, he was admitted to the Community General Osteopathic Hospital, where he remained until September 3, 1984. On that date, Fertig was released from the hospital to Blue Ridge Haven East Nursing Home.

The insurance coverage on Fertig's vehicle was provided by Pennsylvania National Mutual Casualty Insurance Company (PNI). Pursuant to the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act,*fn1 PNI paid for all medical and rehabilitative care made necessary by the injuries

[ 382 Pa. Super. Page 337]

    sustained in the accident. In August, 1986, PNI filed an action for a declaratory judgment to determine whether it had a continuing obligation to pay for Fertig's room at the nursing home. Having heard the case without a jury, the trial court found that all efforts to rehabilitate Fertig had come to an end but that his physical condition was such as to require continuing custodial care. The trial court held that PNI was required to pay for the insured's custodial care under the provisions of the No-fault Act. Post-trial motions were denied, and this appeal followed.

The trial court's findings of fact are supported by the evidence. Dr. Eduardo S. Violago, a rehabilitation specialist who had examined Fertig and reviewed his records, testified that Fertig was no longer a candidate for rehabilitation but continued to need the maintenance and supportive care which were being provided by the nursing home. Dr. Richard Jeffries, the insured's treating physician, and Valerie Spenser, director of physical therapy at the nursing home, said that rehabilitative services had been stopped, but that support and maintenance care continued to be necessary.

An allowable expense is defined by Section 103 of the No-fault Act, 40 P.S. ยง 1009.103, as follows:

"'Allowable expense' means reasonable charges incurred for, or the reasonable value of (where no charges are incurred), reasonably needed and used ...


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