author: HOFFMAN, Judge:

text:
    439 A.2d 678
    Ann SACHRITZ, Administratrix of the Estate of William Sachritz, Deceased, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Pennsylvania Trial Lawyers, Participating Party.
    Superior Court of Pennsylvania.
    Argued May 1, 1981.
    Filed Oct. 30, 1981.
    Reargument Denied Feb. 5, 1982.
    Petition for Allowance of Appeal Granted May 26, 1982.

      Richard L. Rosenzweig, Pittsburgh, for appellant.
    John C. Carlin, Jr., Pittsburgh, for appellee.
    Richard C. Angino, Harrisburg, for participating party.
    Before POPOVICH, MONTGOMERY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting appellee’s motion for summary judgment. We disagree and, accordingly, affirm the order of the lower court dismissing appellant’s claim.

On September 5, 1976, appellant’s decedent succumbed to injuries sustained in an automobile accident on August 19,1976. On February 28, 1977, appellee paid appellant $7,157.86 in benefits pursuant to a no-fault automobile insurance policy it had issued to appellant’s decedent. Of that payment, $553.86 represented the amount of work loss benefits which had accrued from the date of the accident until the date of death. On July 23, 1979, appellant filed a complaint seeking additional work loss benefits. Appellee’s answer and subsequent motion for summary judgment asserted that the complaint was untimely because the applicable statute of limitations had expired. The lower court agreed with appellee and, accordingly, entered an order dismissing appellant’s complaint. This appeal followed.

Appellant contends first that none of the statutes of limitations contained in the Pennsylvania No-Fault Motor Vehicle Insurance Act (the Act) apply to this action to recover additional work loss benefits and that her action was timely commenced within the six-year period generally allowable for contracts, 42 Pa.C.S.A. § 5527(2). See Wright v. Allstate Insurance Co., 271 Pa.Super. 559, 414 A.2d 395 (1979) (action for funeral expenses pursuant to the Act subject to general six-year limitation). We disagree. Section 106(c)(1) of the Act, 40 P.S. § 1009.106(c)(1), provides in pertinent part: “If no-fault benefits have been paid for losses arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.” Postmortem work loss benefits, i.e., those work loss benefits accruing after the date of the deceased victim’s death, are recoverable by the survivors of a deceased victim, but are not considered survivor’s benefits under the Act. See Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980) . Because appellant had already received some work loss benefits when she brought this action to recover postmortem work loss benefits, her action had to be commenced within two years of the date of the last payment of benefits, namely February 28, 1977. Accordingly, because appellant’s complaint was not filed until July 23, 1979, it was barred by section 106(c)(1) of the Act, 40 P.S. § 1009.-106(c)(1).

Appellant contends next that she was denied notice of any right to recover post-mortem work loss benefits because the Act was unconstitutionally vague. Consequently, she argues that the statute of limitations should not have begun to run until April 12, 1979, the date of our decision in Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1260 (1979), aff’d sub nom., Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Appellant was aware of her eligibility for work loss benefits for the period prior to decedent’s death and, in fact, recovered them. Appellant’s contention that she was unsure whether post-mortem work loss benefits could be recovered for the period following the death of the decedent does not excuse her failure to seek them. We can find no justification for appellant’s failure to seek such benefits when no appellate Court in this Commonwealth nor any Common Pleas Court in appellant’s own county had denied them. “Although the No-Fault Act is admittedly complex and some of its provisions do appear to contain some ambiguities, complexity and possible ambiguity in themselves do not support a conclusion of unconstitutionality for reasons of vagueness.” Singer v. Sheppard, 33 Pa.Cmwlth. 276, 283, 381 A.2d 1007, 1010 (1978). The Act was sufficiently clear to have put the appellant on notice of her right to seek post-mortem work loss benefits. Our decision in Heffner did not redefine work loss or create a new right to benefits. “Heffner did not change the law; it rather decided an issue of statutory construction not previously decided by an appellate court. Such an interpretation of legislative intent is considered part of the statute from the time the statute was enacted.” Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980). Appellant was thus required to bring her action within two years of appellee’s last payment. Accordingly, because she failed to do so, we affirm the order of the lower court.

Order affirmed.

      . Appellant’s theory was that she was entitled to work loss payments accruing after the date of her husband’s death as his survivor. See Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd sub nom., Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). In Heffner, we held work loss benefits as well as survivor’s loss benefits are recoverable by the survivors of a deceased victim under the Act. We shall call the additional work loss benefits appellant seeks post-mortem benefits to distinguish them from the work loss benefits accruing between the date of the accident and the date of death.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq.

      . We do not decide the appropriate statute of limitations to be applied to an action for post-mortem work loss benefits when no benefits have already been paid.

      . Appellant contends that her cause of action was timely because her right to recover work loss benefits accrues monthly. That contention is patently meritless. Appellant mistakenly construes § 106(a)(1) of the Act, 40 P.S. § 1009.106(a)(1), as providing monthly causes of action to recover increments of work loss. We disagree. We construe the provision as establishing an expeditious schedule for payment of work loss benefits by the no-fault carrier. The failure to pay work loss benefits is actionable subject to the time limitations expressed in § 106(c), id. § 1009.106(c). As discussed above, because appellant received some work ioss benefits for the period prior to her husband’s death, her cause of action had to be filed within two years of the date the last payment was made. It was not; and we therefore affirm the order of the lower court dismissing her complaint.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    439 A.2d 680
    COMMONWEALTH of Pennsylvania, v. KIRK J., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1981.
    Filed Dec. 11, 1981.

      William J. Madden, Sharon, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and WIEAND, JJ.
   WICKERSHAM, Judge:

On August 5,1980, appellant, Kirk J., was found guilty by District Justice Joseph V. Gabany of the following violations of the Vehicle Code: driving a motor vehicle without a license, a summary offense under 75 Pa.C.S. § 1501(a); fleeing or attempting to elude a police officer, a summary offense under 75 Pa.C.S. § 3733(a); and driving an unregistered vehicle, a summary offense under 75 Pa.C.S. § 1301. Fines in the total amount of $425.00 plus costs were assessed. The juvenile then appealed to the Court of Common Pleas of Mercer County.

At the de novo hearing before the court of common pleas the juvenile contended that since he was fifteen years old, section 6303 of the Vehicle Code, 75 Pa.C.S., was not applicable to him. This section states:

Any person over the age of 16 years charged with the violation of any provisions of this title constituting a summary offense shall have all the rights of an adult and may be prosecuted under the provisions of this title in the same manner as an adult.

Appellant argued before the court of common pleas that based on this section the court had no jurisdiction to hear this case. The court of common pleas agreed and then transferred the matter into juvenile court by applying section 6322 of the Juvenile Act, 42 Pa.C.S. Section 6322 states:

Except as provided in 75 Pa.C.S. § 6303 (relating to rights and liabilities of minors), if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter shall immediately become applicable, and the court shall forthwith halt further criminal proceedings, and, where appropriate, transfer the case to the division or a judge of the court assigned to conduct juvenile hearings, together with a copy of the accusatory pleading and other papers, documents, and transcripts of testimony relating to the case.

Following a hearing held by the juvenile court before the Honorable John Q. Stranahan, President Judge of Mercer County, the court entered an order on December 5, 1980, finding appellant guilty of driving a vehicle while unlicensed, driving an unregistered motor vehicle, and fleeing or attempting to elude a police officer. The court imposed a fine of $100.00 and costs upon the juvenile and directed that he pay the fine and costs within thirty (30) days. The court further found that Kirk J. was a delinquent child.

On December 24, 1980, an appeal was filed with this court and the single question presented was whether the commission of a summary motor vehicle violation by a juvenile under the age of sixteen was a “delinquent act” under the Juvenile Act, 42 Pa.C.S. §§ 6301, et seq.

In Commonwealth v. Alan D., 291 Pa. Superior Ct. 298, 435 A.2d 1231 (1981), we considered a similar question. In Alan D., the defendant, age twelve, was found guilty by a district justice of the summary offense of criminal mischief, 18 Pa.C.S. § 3304(a)(2). The juvenile appealed to the Court of Common Pleas of Berks County, and the matter was ordered transferred from regular miscellaneous court to the juvenile division. Following testimony, the juvenile court found appellant guilty of the summary offense, imposed a fine of $100.00, and ordered the defendant to make restitution. The court further found that unless the deféndant failed to pay the fine levied, he had not committed a delinquent act, and, therefore, was not a delinquent child. 42 Pa.C.S. § 6302.

On appeal to this court, the defendant in Alan D. challenged the jurisdiction of the juvenile division of the court of common pleas over his appeal from the district justice’s summary conviction. We affirmed the juvenile court’s order and held that section 6303 of the Juvenile Act, subsection (a)(2), which directs that the Act applies exclusively to transfers under section 6322, confers jurisdiction over the child’s appeal to the juvenile division. We stated the following:

Underlying appellant’s objection to jurisdiction appears to be the contention that the Juvenile Act, 42 Pa.C.S. §§ 6301, et seq., applies only to delinquent acts, that summary offenses are not included within the designation “delinquent act,” and, therefore, the juvenile division lacks jurisdiction over the subject matter of this case. Section 6302 of the Juvenile Act (hereinafter “Act”) indeed provides that a delinquent act is one designated a crime under the law and that the term shall not include summary offenses, “unless the child fails to pay a fine levied thereunder . . . . ” However, jurisdiction under the Act does not depend solely on allegations of delinquency. Section 6303 of the Act, entitled “Scope of chapter,” provides that in addition to proceedings in which delinquency is alleged, the Act shall apply to “[transfers under section 6322 (relating to transfer from criminal proceedings).”

Id., 291 Pa. at 300-01, 435 A.2d at 1232.

Instantly, we hold that the Mercer County Court of Common Pléas properly transferred the de novo appeal from a summary offense conviction into juvenile court. We hold further that the juvenile court, following a hearing, was empowered to find the juvenile guilty of the summary offenses charged and to impose a fine and costs upon the juvenile.

The finding of the court that Kirk J. was a delinquent child, however, was improper and we reverse that finding.

That part of the order of the juvenile court finding Kirk J. guilty of driving a vehicle while unlicensed, driving an unregistered motor vehicle and fleeing or attempting to elude a police officer, and imposing a fine of $100.00 and costs is affirmed. That part of the order of the juvenile court finding that Kirk J. was a delinquent child is reversed.

      . 42 Pa.C.S. § 6302 provides that a delinquent act does not include a summary offense unless the child fails to pay a fine levied thereunder, in which event notice of such fact shall be certified to the court. See In Interest of Ryan, 277 Pa. Superior Ct. 433, 419 A.2d 1224 (1980). In both cases in Ryan, a child was convicted by a district justice of various summary offenses. The child was fined and did not take an appeal. When the child did not pay the fines, the district justice certified the case to the court of common pleas. The juvenile court ruled that the only issue properly before it was whether the child had failed to pay the fines. Finding that the child had failed to pay, the juvenile court adjudicated the child delinquent and placed him on probation. This court held that the juvenile court acted properly, and that pursuant to 42 Pa.C.S. § 6302, the juvenile court may not adjudicate a child delinquent simply because the child has been convicted of a summary offense.

        Commonwealth v. Alan D., supra, at 1232-33 n.2.