author: JOHNSON, Judge:

text:
    454 A.2d 1072
    COMMONWEALTH of Pennsylvania v. Dale STITZEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 24, 1981.
    Filed Dec. 30, 1982.

      John H. Chronister, Assistant Public Defender, York, for appellant.
    Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.

       Died Jan. 30, 1983.

   JOHNSON, Judge:

Appellant, Dale Stitzel, was convicted by a jury of the crime of rape. After denial of post verdict motions contesting only the sufficiency of the evidence to support the verdict, the trial court sentenced appellant to a term of imprisonment of nót less than five years nor more than ten years. From this judgment of sentence, appellant appealed to this court. However, prior to decision, appellant’s new appeal counsel petitioned for and was granted by this court a remand for purposes of conducting an evidentiary hearing as to the effectiveness of trial counsel’s representation. On March 31, 1980, an evidentiary hearing was held on appellate counsel’s allegations of ineffective assistance by trial counsel. Subsequently, by order dated May 9, 1980, the hearing court dismissed appellant’s “petition for new trial.” Now appellant pursues his appeal from the judgment of sentence.

In his brief, appellant raises two issues for our consideration. First, appellant questions the sufficiency of the evidence presented by the Commonwealth at trial to support his conviction for rape. Second, appellant asserts that trial counsel rendered ineffective representation.

Turning our focus to appellant’s second issue, we note that appellant has lumped together in his brief four separate allegations of ineffectiveness under the general rubric of ineffective assistance of trial counsel. Since we find that one of appellant’s allegations of ineffective assistance of trial counsel warrants reversal of judgment of sentence and a new trial, we will not discuss the other arguments appellant raises concerning the ineffectiveness of trial counsel, nor will we discuss appellant’s first issue.

In analyzing appellant’s claim of ineffectiveness, we must first determine whether appellant raises an issue of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). If we conclude that appellant has raised an issue of arguable merit, we then must examine the approach employed by trial counsel in light of the available alternatives to determine whether counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

Appellant argues that trial counsel rendered ineffective assistance of counsel during the jury selection process when he omitted to ask juror # 4, Elmer S. Weaver, Jr., if he was acquainted with the victim’s family, and thereby failed to ascertain that he was an acquaintance of the victim’s father. Because trial counsel failed to ascertain that juror # 4 was acquainted with the victim’s father, juror # 4 was sworn on the jury panel. At trial following the prosecutor’s opening remarks, juror # 4 informed the court that he knew the victim’s father. Trial counsel then requested a mistrial on the ground that juror #4 was personally acquainted with the victim’s father. Then, the trial judge conducted a voir dire examination of the juror in the presence of both counsel, but in the absence of the remaining jurors. The trial judge made several inquiries of the juror. In response to these inquiries the juror revealed that: (a) he had not been asked previously whether he knew the victim’s father, (b) he knew the victim’s father because of their mutual place of employment, (c) he knew the victim’s father “fairly well,” but (d) he did not know the victim personally or the rest of the victim’s family. The juror also stated that he did not know anything about the case. Finally, the juror stated that he could put aside his acquaintance with the victim’s father and render a fair verdict upon the evidence presented at trial. On the basis of these responses, the trial judge denied trial counsel’s motion for mistrial.

In its opinion, the trial court concluded that while trial Counsel may have been ineffective in the jury selection process, “the error, if any, was rendered harmless beyond a reasonable doubt by the court’s [later] interrogation of the juror and [determination] that he could render a fair and impartial verdict.”

We recognize the possibility that the trial judge may have properly exercised his discretion to retain juror # 4 on the panel when the fact of acquaintance was disclosed at trial. But, we do not here evaluate the trial judge’s decision at trial, we evaluate trial counsel’s stewardship during jury selection. We are here concerned with the alleged failure of trial counsel to ascertain during the jury selection process whether a potential juror (juror # 4) was acquainted with the family of the victim. Further, we note that in Commonwealth v. Badger, 482 Pa. 240, 244, 393 A.2d 642, 644 (1978), our supreme court disapproved of the use of a harmless error standard “in determining whether counsel is effective ... because assistance of counsel is among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” See also Commonwealth v. Williams, 273 Pa.Super. 147, 416 A.2d 1132 (1979). Therefore we must reject the harmless error analysis of the trial court and apply the traditional Maroney-Hubbard test for determining whether trial counsel rendered ineffective assistance of counsel.

We begin our analysis by determining whether the issue appellant raises has arguable merit. It is well settled that it is the duty of the parties to ascertain, by proper examination at the time the jury is empaneled, the existence of any reasons for objection to the jurors. Commonwealth v. Aljoe, 420 Pa. 198, 206, 216 A.2d 50, 54 (1966). It is the purpose of jury selection voir dire to provide counsel with an opportunity to determine if the prospective jurors are subject to challenge for cause. Commonwealth v. Legree, 256 Pa.Super. 128, 389 A.2d 634 (1978). Here, the thrust of the inquiry that trial counsel allegedly omitted is to determine the existence and depth of any acquaintance a potential juror has to the victim’s relatives. The response that would have been elicited may have provided grounds for a challenge for cause because of bias or the existence of a “close” relationship to the case. See Commonwealth v. Colon, 223 Pa.Super. 202, 299 A.2d 326 (1972). Hence, we believe it would have been proper voir dire to question juror # 4 regarding his acquaintance to the victim’s father.

In essence, appellant argues further that the failure of his trial counsel to make this inquiry of juror # 4 precipitated a violation of his federally guaranteed right to a fair trial by an impartial jury. In Commonwealth v. Corniteher, 447 Pa. 539, 551-2, 291 A.2d 521, 527 (1972), it was emphasized that when a defendant questions the impartiality of only one juror, a violation of his federal right to an impartial jury is implicated. Here juror # 4’s response that he knew the victim’s father “fairly well” indicates more than a passing acquaintance; rather it indicates a substantial connection with the victim’s father, who at trial was a witness for the prosecution. This response alone may have been sufficient under Colon, supra, to cause the exclusion of the juror by invoking a presumption of the likelihood of prejudice.

For these reasons, we believe that appellant has raised an issue of arguable merit.

Next, we must weigh the alternatives available to trial counsel to determine whether trial counsel had some reasonable basis. We note initially that “sloth and lack of awareness” by trial counsel during jury selection may constitute ineffective assistance of counsel. See Commonwealth v. Roundtree, 469 Pa. 241, 364 A.2d 1359 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). Our inquiry is whether trial counsel made an informed choice, which at the time the decision was made reasonably would have been considered as advancing and protecting the appellant’s interest. Commonwealth v. Roundtree, supra.

We begin our analysis by determining whether trial counsel did indeed fail to ask juror # 4 during the jury selection process whether he knew the victim’s father. At trial during the trial judge’s voir dire, juror # 4 stated that he had not been asked whether or not he knew the victim’s father. At the evidentiary hearing following remand, trial counsel could not recall asking if anyone on the panel knew the victim’s family. Additionally, we note that trial counsel could not seem to recall correctly, at trial, what had been asked during jury selection. There is evidence in the record that could reasonably support the inference that trial counsel did not inquire whether any of the potential jurors were acquainted with the victim’s family. From our review of the record, we conclude that there is sufficient credible evidence to establish that trial counsel failed to inquire of, at least, juror # 4, whether or not he was acquainted with the victim’s family.

Trial counsel testified at the hearing that as a matter of strategy during jury selection, he did not want anyone on the jury who knew thé victim, her family, or the appellant. Presumably that would include someone who knew the victim’s father. Trial counsel went on to state that had he known about juror # 4’s acquaintance with the victim’s father, the mere potential of partiality would have caused him to challenge the juror.

We note that had trial counsel made appropriate inquiries, and presumably gotten the same answers- as did the trial judge during his voir dire, trial counsel would have had the option of attempting to challenge juror # 4 for cause or, failing this, he could have exercised a peremptory challenge. Thus, had trial counsel made the appropriate inquiries, he would have had the means to eliminate juror # 4 from the jury panel.

From all the evidence in the record, we cannot say that trial counsel made a deliberate “informed choice” employed to advance the interests of his client.

Since “a finding of ineffectiveness [can] never be made unless [it can be] concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized,” see Commonwealth v. Badger, supra, we next consider whether in this case the inquiry that trial counsel failed to make would have offered appellant a substantially greater potential for success.

From examination of the trial record, it is apparent that the evidence presented by either party did not overwhelmingly establish appellant’s innocence or guilt, contrary to the implication in the trial judge’s opinion on appellant’s allegations of ineffectiveness. A more accurate observation about the evidence is that it distilled itself into a classic case of credibility whereby the jury’s verdict hinged upon which version of the facts it found more credible, the victim’s or the appellant’s. Under these circumstances, of which trial counsel should have been aware, the presence of a juror potentially partial to the victim could have easily swayed the jury’s determination of the crucial credibility issue. Trial counsel, had he ascertained the fact of acquaintance, would have had the opportunity to ensure his client a fair and impartial judgment at trial of his and the victim’s respective credibilities by simply exercising a peremptory challenge to juror # 4. While we recognize that these considerations are to some degree speculative, the recognition of the possibility of prejudice or bias from such a relationship is certainly justification for our concluding that trial counsel did a disservice to his client during jury selection when he failed to ask the appropriate questions which would have prompted him to remove this juror. Cf Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977). Under the circumstances of this case, the removal of this juror is obviously the course that offered a substantially greater potential for success, especially since the realization of this possibility of bias could very well be a decisive factor on the crucial issue of credibility in this case for juror # 4 and, through him, the remaining jurors.

We find no apparent reasonable basis in the record that dissuades us from concluding that trial counsel was ineffective. It is apparent from the record that trial counsel failed to implement, during jury selection, his own professed strategy of preventing persons who knew the victim or the victim’s family from sitting on the jury. Indeed, the record supports the inference that trial counsel asked none of the potential jurors if they were acquainted with the victim or her family. During the evidentiary hearing, trial counsel did not specify any other considerations so imperative as to justify him in permitting juror # 4 to remain on the panel, despite juror # 4’s acquaintance with the victim’s father.

We therefore hold, as we must, without regard for any harmless error analysis based on the voir dire held at trial, that trial counsel rendered ineffective assistance of counsel during the jury selection process by failing to ascertain that juror #4 was acquainted with the victim’s father. This failure foreclosed trial counsel from removing juror # 4 from the panel to ensure his client of a fair and impartial jury to determine the crucial issue of credibility that was sure to arise at trial.

We do not construe our holding today to require a finding of ineffective assistance of counsel any time trial counsel fails to ask a meritorious voir dire question; rather, we are persuaded that here the entire case hinged upon the credibilities of appellant and the victim, and trial counsel, through omission without reasonable basis, placed a potentially biased juror on the panel to the detriment of his client’s interests.

We reverse the conviction and grant appellant a new trial.

      . 18 Pa.C.S.A. § 3121(1)(2).

      . The order of Superior Court granting remand was entered February 15, 1980 at No. 258 March Term, 1979, Harrisburg District.

      . After remand appellant's new counsel filed a petition captioned “additional reasons for alleged ineffective assistance of counsel,” to supplement the post trial motions filed earlier by prior counsel. Then new counsel filed a brief in support of his petition. The hearing court treated appellant’s petition as a supplemental post-trial motion requesting a new trial, but it referred to appellant’s petition as a “petition for new trial” in its order.

      . Appellant argues that trial counsel was ineffective for: (1) failing to preserve for appellate review the trial judge's decision not to remove juror #4 at trial, (2) insisting upon a completely new jury panel, rather than asking the trial judge to substitute a new juror for juror # 4 and (3) failing to preserve for review the trial judge’s decision not to remove a female juror who was allegedly flirting with an assistance district attorney who was present merely to observe the trial so that he could act as a substitute for the assistant district attorney trying the case should the need arise.

      . Commonwealth v. Stitzel, No. 688 Criminal Division, slip op. at 3-4 (C.P. York County May 9, 1980).

      . In note 8 infra, we have expressed reservations as to the sufficiency of the inquiries made concerning juror it 4’s acquaintance with the victim’s father. These reservations extend to the exercise by the trial judge of his discretion to permit juror # 4 to remain upon the panel.

      . Citations omitted from the quotation.

      . Even if we were not satisfied that the juror’s response may have been sufficient basis for automatic exclusion to ensure the fairness of the trial, we still would be inclined to reach the same conclusion. Juror # 4’s response during voir dire that he knew the victim’s father “fairly well" simply was not sufficient to illuminate the depth of his acquaintance with the victim’s father. The implication is that juror # 4 had some degree of friendship with the victim’s father. Had there been further questioning to determine the depth of juror # 4’s acquaintance with the victim’s father, a basis for exclusion may have become more readily apparent. In Schwarzbach v. Dunn, 252 Pa.Super. 454, 457, 381 A.2d 1295, 1298 (1977), our court, citing Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972), awarded a new trial to the defendant, Dunn, even though only a potential for prejudice was proved because of the lack of inquiry into the nature of the relationship of the prospective juror’s wife to the counsel for the plaintiff. Certainly, the interests in a fair trial by an impartial jury in a criminal case are more paramount than in a civil case. While a civil litigant risks only money, a criminal defendant risks a substantial loss of liberty. Here, we will not speculate as to the depth of the relationship involved. However, in light of juror # 4’s response, we are inclined to tip the balance in favor of insuring a fair trial, as did the court in Schwarzbach, supra.

      . Notes of Testimony, Evidentiary Hearing, March 31, 1980 at 6.

      . See note 11 infra.

      . After the panel of jurors were sworn, another juror, juror # 24, was excused because she knew some of the people involved and the facts of the case. Neither counsel objected to her being excused. Then following the prosecutor’s opening remarks, juror #4 disclosed his acquaintance with the victim’s father. Responding to an assertion by trial counsel that the prosecutor had inquired of all potential jurors whether they knew any party in the case, the prosecutor unequivocally denied having asked if any of the potential jurors knew the victim or the victim’s family; rather he stated that he asked them if they knew the appellant or appellant’s trial counsel. Juror # 4 later stated that he had not been asked whether he was acquainted with the victim or her family. We believe it is fair to say that trial counsel did not recall at time of trial whát happened during jury selection and may not have been fully attentive. While we do not know whether the jury selection voir dire was conducted individually or collectively, the controversy with both of these jurors and the prosecutor’s statement leads us to believe that trial counsel may not have asked any of the potential jurors if they were acquainted with the victim’s family.

      . Trial counsel did not elaborate upon what he meant by the word challenge. However, we presume trial counsel may have been referring to the exercise of a peremptory challenge, since earlier in testimony he stated that the relationship of juror # 4 was not so “close” as to constitute reversible error, thus indicating to us he may not háve believed he could have challenged the juror for cause.

      . We recognize the possibility that juror # 4’s relationship with the victim’s father may not have been sufficiently “close” to warrant a challenge for cause during jury selection. Compare Commonwealth v. Stamm, 286 Pa.Super. 409, 429 A.2d 4 (1981) (where the relationship of a juror with some party was too remote to warrant automatic removal) with Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375 (1971) (where it was held that trial judge did not abuse his discretion in permitting a casual acquaintance of a relative of the victim to remain on the jury). However, see note 8 supra, where we expressed reservations as to the sufficiency of the inquiries made concerning juror # 4’s acquaintance with the victim’s father.

      . Even without a challenge for cause basis, trial counsel would have exercised a peremptory challenge to insure the fairness of the trial. These circumstances are a paradigm case for the exercise of a peremptory challenge. See generally, Commonwealth v. Henderson, 497 Pa. 23, 32-3, 438 A.2d 951, 955 (1981). This much trial counsel confirmed during the evidentiary hearing.

      . See note 11 supra.


source: Caselaw Access Project

license: Public Domain

text:
    454 A.2d 1078
    Betty J. MINIER, Individually and as Executrix of the Estate of Leonard R. Minier, Sr., v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      James J. McCabe, Philadelphia, for appellant.
    John F. Campana, Williamsport, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

The order appealed from granted appellee’s motion for partial summary judgment and awarded her the work loss benefits which she claimed due her under the Pennsylvania No-fault Motor Vehicle Insurance Act [No-fault Act].

Appellee is the widow and executrix of the estate of Leonard R. Minier, Sr., who died in a motor vehicle accident on April 15, 1978. At the time of the accident the decedent was insured by the appellant insurance company [State Farm]. Under the policy State Farm paid certain no-fault benefits—survivor’s loss, funeral expenses and medical expenses—but denied Mrs. Minier’s claim for work loss benefits. On December 3, 1980, therefore, Mrs. Minier filed a complaint seeking the work loss benefits which the appellate courts of this commonwealth had determined were due the survivors of deceased motor vehicle accident victims. See Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980). In its answer and new matter State Farm asserted firstly that Heffner should not be applied retroactively, secondly that because the decedent had retired from his employment and was on a pension, there was no work loss for which benefits should be paid, and thirdly that the survivor’s loss benefits paid should be excluded from any work loss benefits. These same three issues are raised before this court in State Farm’s appeal from the order granting partial summary judgment in Mrs. Minier’s favor.

This court has decided, in Baker v. Aetna Casualty & Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1982), that the decision in Heffner, supra, is to be applied retroactively to all cases not barred by the applicable statute of limitations. We do not need to discuss this issue further. Appellant’s first contention, therefore, fails.

The issue of whether or not there should be a recovery of work loss benefits under the No-fault Act where the decedent had retired from employment has not been decided by an appellate court. The lower court responded to State Farm’s assertion—that retired persons are not entitled to work loss benefits—by stating that it was aware of no authority for such an assertion, which it considered to fly in the face of the language of the No-fault Act providing for recovery of work loss benefits even where there is no work history on the part of the decedent.

We agree. State Farm provides us with no authority for its position, other than the absence of language concerning retired persons in the No-fault Act. In Article II of the No-fault Act, concerning the right to benefits, the legislature described the method of calculating work loss benefits for certain categories of victims, namely those “regularly employed”, “seasonably employed” and “not employed”. 40 P.S. § 1009.205. The calculations involve a determination of “probable weekly income.” For those victims who are unemployed at the time of the accident the following method is described:

(c) Not employed.—The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period.

40 P.S. § 1009.205(c). The work loss section further provides:

(d) Definitions.—As used in this section:
“Probáble annual income” means, absent a showing that it is or would be some other amount, the following:
(B) the average annual gross income earned by the victim from work during the years in which he was employed, not to exceed three, preceding the year in which the accident resulting in injury occurs, for a victim seasonally employed or not employed at the time of the accident[.]

40 P.S. § 1009.205(d).

The No-fault Act, then, does not require questions to be asked as to the reason why a victim is not employed at the time of the accident. Nor does it make any distinctions, other than in the method of calculation, between those who have been laid off, those never employed, those who have quit, or those who have retired. It provides for some recovery of work loss benefits for those who were not employed at the time of the accident, notwithstanding the reason for their lack of employment, depending on some probability of income forthcoming had the accident not happened.

A rule that survivors of those persons killed after having retired from employment should not be entitled to recover work loss benefits would add an exclusion to the statute not provided for by the legislature. Such a rule would also flout the avowed purpose of the statute which is in part “the maximum feasible ... compensation of the economic losses of the survivors of all individuals killed in motor vehicle accidents____” 40 P.S. § 1009.102(a)(3) (emphasis added). Furthermore, by its very terms the statute places some limits on the provision of work loss benefits. See section 205 as quoted from supra at 1079.

In Dorsey v. Harleysville Mutual Insurance Co., 285 Pa.Super. 124, 426 A.2d 1173 (1981), where the claimant had been mostly unemployed for the five years immediately preceding the accident, this court ruled that there was nevertheless a reasonable expectation that he would have realized some income if he had not been injured. This court remanded the case to the trial court for a calculation of wage loss due the claimant. The calculation was to be made as follows:

It seems fairly clear from [the] language [of sections 205(c) and (d)] that in the case before us appellant’s “probable annual income” should be calculated by averaging his gross annual income from the years 1969, 1970 and 1973, the three years in which he was employed preceding the [1975] accident. Accepting for the present, appellant’s calculation of $4,668.83 as the average for those three years, then appellant’s “probable annual income” would be $4,668.83 and his “probable weekly income” would be $89.78 (assuming that no evidence was introduced by any party to show that the “probable annual income” would be some other amount). As part of the final step in calculating “work loss”, the finder of fact must determine “the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income____”

285 Pa.Super. at 126-27, 426 A.2d at 1174 (footnote omitted). See also Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999 (1982), holding that the estate of a deceased victim can recover work loss benefits even where the deceased victim was a minor who had never worked.

A rule barring survivors of deceased retired persons from collecting work loss benefits would be based on an assumption that all retired persons earn no further income. Such an assumption does not merit any comment. And we decline to find such a rule lurking in the interstices of the No-fault Act. The true issue in such a situation is whether the individual retired person had any “probable” income or reasonable expectation thereof. It is a matter of proof in each case.

The third and final issue raised by State Farm is whether the survivor’s loss benefits should be deducted from the work loss benefits so as to avoid a double recovery. State Farm asserts'that the No-fault Act so provides. State Farm attempts to find such authority in section 1009.202(b) and (d) of the No-fault Act. This section provides that work loss benefits are to be provided up to a certain monthly maximum, with a total amount recoverable of fifteen thousand dollars, and that survivor’s losses are to be provided in an amount not to exceed five thousand dollars. State Farm would have us construe the statute to mean that a survivor who recovers survivor’s loss benefits must deduct them from the work loss benefits, so that the maximum work loss benefits recoverable by a surviving spouse who has recovered the maximum survivor’s loss benefits would be ten thousand dollars—subtracting the five from the fifteen thousand.

This argument directly contradicts the No-fault Act. In Article II of the Act, entitled “Rights to Benefits”, the Act provides in section 1009.201 that “any victim or any surviv- or of a deceased victim is entitled to receive basic loss benefits____” Basic loss benefits are defined in section 1009.103 as

“benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or other terms and conditions provided or authorized in accordance with this act.”

Then in section 1009.202 there is a listing of basic loss benefits which includes in part work loss benefits, 40 P.S. § 1009.202(b), and survivor’s loss benefits, 40 P.S. § 1009.-202(d). First, the act does not provide that these benefits are in the alternative. Second, certain words in section 1009.202 are imperative—work loss and then survivor’s loss “shall be provided.” Third, the calculation for work loss benefits, in sections 1009.202(b) and 1009.205, does not provide for a deduction of survivor’s loss benefits from the work loss benefits to be paid. Fourth, there are specific provisions in the No-fault Act where certain deductions are to be made. See, e.g., section 1009.206 providing that certain government benefits received by a no-fault claimant because of the injury are to be “subtracted from loss in calculating net loss”, and that any income tax savings are likewise to be subtracted in “calculating net loss for work loss”. Fifth, in section 1009.106(e) the No-fault Act specifically provides: “Except as otherwise provided in this act, basic loss benefits shall be paid without deduction or set-off.” We see no reason therefore to find merit in State Farm’s assertion that the No-fault Act provides for a deduction of the survivor’s loss benefits received from the work loss benefits to be paid.

State Farm finds further support for its proposition in certain language by our supreme court in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). With respect to a double recovery argument which was raised by the insurance company in Heffner, our supreme court said:

[W]e believe that in practice, recovery of survivor’s loss and work loss benefits by survivors of deceased victims, will no more constitute double recovery under the Act than does recovery under analogous wrongful death and survival actions in tort law____ As we view the Act, the decedent’s contribution of income under survivor’s loss recovery shall be excluded from the amount recovered under work loss. In this manner, both basic loss benefits will compliment [sic], rather than duplicate each other. It must be kept in mind that the Act sets monetary limits of $15,000 for recovery of work loss benefits and $5,000 of survivor’s loss benefits. If actual losses do not reach or exceed these limits, the full amounts of these basic loss benefits need not be paid.

491 Pa. at 459-60, 421 A.2d at 636 (citations omitted).

It should be remembered that in Heffner the argument as to double recovery was raised in an attempt to persuade the supreme court that the No-fault Act did not provide for work loss benefits to be paid to the survivors of deceased automobile accident victims. The above statement therefore was not in response to the argument which State Farm presents to us. We are therefore not persuaded that this dictum from Heffner lays down the rule that the five thousand dollar survivor’s loss recovery must be deducted from the fifteen thousand dollar work loss recovery. In view of the fact that work loss benefits are a statutorily mandated recovery intended to provide a low cost comprehensive compensation scheme, 40 P.S. § 1009.102(a)(4), with payment of all of a victim’s basic medical and rehabilitative costs, and recovery of a reasonable amount of work loss and survivor’s loss, 40 P.S. § 1009.102(a)(6)(A), we believe that State Farm’s suggested interpretation flouts the spirit as well as the language of the No-fault Act.

By work loss, the act means the loss of gross income of the decedent. Survivor’s loss is, in part, that portion of the gross income actually lost which the decedent would have contributed to the survivors if he had not been killed. The contribution which the decedent would have made to the survivors therefore comes out of his gross income. Survivors are entitled to recover survivor’s loss benefits and work loss benefits, which are separate elements of the basic loss benefits provided by the No-fault Act.

We conclude and therefore hold that in any calculation of the basic loss benefits recoverable, any subtractions are to be made at the level of the actual losses incurred (gross income actually lost), rather than at the level of the benefits recoverable. In other words, the subtraction of survivor’s loss benefits from work loss benefits is made such that the portion of the gross income actually lost by a decedent which would have been contributed to the surviv- or(s) is subtracted from the loss of gross income of the decedent. Then, in a case where these sums exceed the maximum statutory recovery of survivor’s loss benefits and work loss benefits, the survivor recovers the full statutory amount. In a case where the actual work loss does not reach the statutory maximum, the survivor recovers, as a work loss benefit, the loss of gross income of the decedent less any portion of gross income which the decedent would have contributed to the survivor and which the survivor is recovering under survivor’s loss.

We note that the parties in this case sought to stipulate that the computation of work loss benefits would be “computed from August 31, 1979, the date when the first monthly work loss payment was overdue following notice of the claim.” Reproduced Record at 79a, IT 11. However, decedent met his death on April 15, 1978, while the policy here under review was in full force and effect. R.R. at 78a, II4. Work loss benefits are due and payable monthly as loss accrues, and as work loss is sustained, 40 P.S. § 1009.-106(a)(1), subject only to a possible waiting period not to exceed one week, 40 P.S. § 1009.202(e)(2). We will not condone the parties’, by stipulation, reducing the benefits provided by statute.

The trial court erroneously accepted the stipulation of the parties that the work loss benefits should be calculated from a date thirty days following the written demand for benefits, rather than from the time when the work loss was, in fact, sustained. The order of the trial court dated June 23, 1981, which entered judgment in the amount of $11,-576.21, with work loss benefits to accrue thereafter in a fixed amount, exclusive of interest, is therefore vacated. This case is remanded to the trial court to hold hearings, as required, and for the entry of judgment in favor of Betty J. Minier and against State Farm Mutual Automobile Insurance Company for the proper amount of work loss benefits due appellee consistent with this opinion and with the No-fault Act, including the provisions in 40 P.S. § 1009.106(a)(2) as to interest, as interpreted in Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981).

Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . The lower court denied Mrs. Minier’s request for attorney’s fees. No appeal was taken from that part of the order.

      . Minier v. State Farm Mutual Automobile Insurance Co., No. 80-0366, slip op. at 1-2 (C.P. Lycoming County, April 30, 1981).

      . See, e.g.: Ineligible claimants are described in section 1009.208. The statute of limitations is to be found in section 1009.106(c).

      . Cf. the cases where our trial courts have held that victims of automobile accidents are not automatically prevented by the No-fault Act from collecting work loss benefits, even where the victim was unemployed for eight years, as in Callahan v. State Automobile Insurance Co. of Columbus, Ohio, 18 Pa.D. & C.3d 190 (1981), or never employed, as in Marryshaw v. Nationwide Mutual Insurance Co., 13 Pa.D. & C.3d 172 (1979). See Marryshow v. Nationwide Mutual Insurance Co., 306 Pa.Super. 233, 452 A.2d 530 (1982). After ¿ jury trial, and verdict for Marryshow, Nationwide moved for judgment n.o.v., which was denied. Nationwide appealed. This court affirmed, agreeing with the trial court that Marryshow, a first year college student, was entitled to work loss benefits.

      . Additionally, a reading of the definition of survivor’s loss shows that loss of wages is not the only element of survivor’s loss. The Act defines survivor’s loss thus:
      "Survivor’s loss” means the:
      (A) loss of income of a deceased victim which would probably have been contributed to a survivor or survivors, if such victim had not sustained the fatal injury; and

      (B) expenses reasonably incurred by a survivor or survivors, after a victim’s death resulting from injury, in obtaining ordinary and necessary services in lieu of those which the victim would have performed, not for income, but for their benefit, if he had not sustained the fatal injury, reduced by expenses which the survivor or survivors would probably have incurred but avoided by reason of the victim’s death resulting from injury.
      40 P.S. § 1009.103 (emphasis added). In other words, loss of income is only part of the survivor’s loss benefits recoverable. Another element of survivor’s loss is the costs which ensue when, as a consequence of the fatal accident, the survivor must pay someone else to perform certain tasks previously performed by the decedent. Thus, even if survivor’s loss benefits were to be deducted from work loss benefits, a blanket deduction of the five thousand dollar survivor's loss benefits would be incorrect. It would first have to be determined which proportion of survivor’s loss was for the loss of income of the decedent, and which was for expenses for a substitute provider of services.

      . The terms "basic benefits,” "loss of income,” “net loss,” "survivor’s loss” and “work loss” are here used strictly in accordance with the definitions in 40 P.S. § 1009.103.


author: POPOVICH, Judge:

text:
    454 A.2d 1083
    COMMONWEALTH of Pennsylvania, Appellant, v. Eric WILLIAMS a/k/a David Murphy.
    Superior Court of Pennsylvania.
    Argued March 30, 1982.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Granted March 22, 1983.

      Kenneth S. Gallant, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Paul Messing, Assistant Public Defender, Philadelphia, for appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal filed by the prosecution from an order of the court below which granted appellee’s motion to suppress. We reverse and remand for proceedings consistent with this opinion.

The facts as found by the trial court reveal the following:

On January 24, 1980, James Dugan was robbed of a bank bag. On February 6, 1980, Detectives Walsh and Russell arrested the appellee, Eric Williams, in connection with the robbery. Detectives Walsh and Russell were informed pri- or to appellee’s arrest that a warrant had been issued. This information proved later to be erroneous. Detective Walsh had also been informed by Detective Kuhlmeier that an identification of appellee as one of the actors in the crime had been made. Detective Walsh testified finally that he had received information on the street that appellee had been involved in the robbery. Detective Walsh, however, never testified to the source of the information, nor did he state a basis for his belief in the reliability of the information. Detective Walsh took the appellee into custody based on the above information.

At approximately 7:00 p.m., the appellee, at the time of the arrest, was a juvenile and was interviewed by Detective Robert Kuhlmeier. At this time, Detective Kuhlmeier informed appellee of the reasons for his arrest and the circumstances of the crime. Appellee was asked whether his parents were at home. After appellee was informed that his father was home, Detective Kuhlmeier proceeded to appellee’s home, and approximately one half hour later, the detective returned to the police station with Mr. Ollie Williams, appellee’s father.

Prior to the time either appellee or his father was informed of appellee’s Miranda rights, the detective permitted the appellee and his father a few minutes in which to consult. The detective thereafter advised the appellee and his father of appellee’s rights. Shortly after advising appellee of his rights, a statement was obtained which was signed by appellee and his father. The trial court granted appellee’s motion to suppress the statement, physical evidence and identification, and this appeal followed.

In his motion to suppress, appellee asserted various grounds in support of his contention that the evidence was obtained in violation of his constitutional rights: (1) the arrest was illegal because it was not supported by probable cause; (2) the appellee’s statement was the product of physical or psychological coercion; (3) appellee’s questioning was not preceded by adequate warnings; and (4) appellee was subjected to unnecessarily suggestive identification procedures at the preliminary hearing and at the photographic identification. The suppression court conducted a hearing and concluded that “due to the fact that the juvenile Defendant was not offered the opportunity to consult with his father after being advised of his rights, the Commonwealth failed to show that the Defendant’s statement was made after he had an opportunity to consult with an informed and interested adult.” Record D-15 at 7-8. In view of the court’s disposition, it did not reach the merits of the other issues.

On appeal, the prosecution raises three issues: (1) whether appellee’s statement was given knowingly and voluntarily after consultation with an informed interested adult; (2) whether appellee was sufficiently knowledgeable and mature that he could knowingly and voluntarily waive his rights without consulting an adult; and (8) whether the requirement of the presence of an adult advisor before a juvenile knowingly and voluntarily made a statement should be replaced by a test which considers the totality of the circumstances in determining whether a statement has been made in a knowing and voluntary manner. We agree in part with the prosecution’s contentions; however, a remand is necessary for the reasons herein stated.

Initially, we note that the following standards are applicable to determining whether a juvenile defendant has effectuated a valid waiver of his Miranda rights: “(1) the juvenile must be given the opportunity to consult with an adult; (2) the adult must be one who is genuinely interested in the welfare of the accused juvenile; and (3) the interested adult must be informed and aware of those Fifth and Sixth Amendment rights guaranteed to the juvenile.” Commonwealth v. Barnes, 482 Pa. at 560, 394 A.2d at 464 (citations added).

Additionally, we recognize the following standard of review in suppression cases: in reviewing the suppression court’s findings, our inquiry is limited to determining whether the inferences and legal conclusions based thereon are correct. . Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976). Although the record supports the suppression court’s factual findings, we are unable to agree with the legal conclusions drawn therefrom. The court stated the following in its opinion:

“In the instant case, the Defendant was permitted to consult with his father prior to either one of them being informed of the Defendant’s rights; however, after the Warnings were given they were not offered an opportunity to consult out of the presence of the police.” Trial Court’s Opinion at 4. (Emphasis added).

Although we agree with the trial court that the relevant time period in determining whether a waiver had occurred was after the Miranda rights were administered by the police, we are unable to conclude that the waiver was ineffective because appellee and his informed adult were not afforded an opportunity to consult “out of the presence of the police”. Id.

In a recent case, Commonwealth v. Rochester, supra, this Court addressed the identical issue herein presented and held that “the prosecution met its burden in establishing that appellant [, the defendant,] entered into a voluntary, understanding, and intelligent waiver of [his] Miranda rights since the record indicates that a parent was present during [the] interrogation.” Id., 305 Pa.Superior Ct. at 375, 451 A.2d at 696. Therefore, despite the fact that a private meeting was not conducted between appellee and his father prior to appellee’s confession because the record establishes that the father was present during the interrogation, appellee’s waiver of his Miranda rights is valid.

However, because the court below granted the relief appellee requested, it did not address the other issues raised in appellee’s motion to suppress; that is, appellee’s constitutional rights were violated because his arrest was illegal and also because appellee was subjected to unnecessarily suggestive identification procedures at the preliminary hearing and at the photographic identification. Some of the facts pertinent to the suppression issues were contained in the court’s opinion. These facts, although set forth above, will be repeated below for purposes of clarity.

On January 24, 1980, James Dugan was robbed of a bank bag. On February 6, 1980, Detectives Walsh and Russell arrested the appellee, Eric Williams, in connection with the robbery. Detectives Walsh and Russell were informed pri- or to their arrest of the appellee that a warrant had been issued. This information proved later to be erroneous. Detective Walsh had also been informed by Detective Kuhlmeier that an identification of appellee as one of the actors in the crime had been made. Detective Walsh testified finally that he had received information on the street that appellee had been involved in the robbery. Detective Walsh, however, never testified to the source of the information, nor did he state a basis for his belief in the reliability of the information. Detective Walsh took the appellee into custody based on all of the above information. The prosecution rested its case at the suppression hearing without presenting additional testimony, and the evidence proffered by the appellee also did not contradict that of the prosecution in this respect.

Initially, we reiterate that our scope of review in an appeal from an order of a suppression court has been set forth in the following manner:

“When ruling on suppression motions, the suppression court is required to make findings of fact and conclusions of law as to whether evidence was obtained in violation of the defendant’s constitutional rights, Pa.R.Crim.P. 323(i), and must determine whether the Commonwealth has established by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). On review, this Court must ‘determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.’ Commonwealth v. Brown, 473 Pa. 562, 566, 375 A.2d 1260, 1262 (1977); Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975). In doing so, we will consider ‘only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted.’ Commonwealth v. Brown, supra, 473 Pa. at 566, 375 A.2d at 1262; Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976). See Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978); Commonwealth v. Harris, 479 Pa. 131, 138, 387 A.2d 869, 873 (1978); Commonwealth v. Crosby, 464 Pa. 337, 342, 346 A.2d 768, 771 (1975). See also Culombe v. Connecticut, 367 U.S. 568, 604, 81 S.Ct. 1860, 1880, 61 L.Ed.2d 1037 (1961).”
Commonwealth v. Davis, 491 Pa. 363, 367, 421 A.2d 179, 181 (1980).

The uncontradicted evidence introduced below revealed that an eyewitness identified appellee as one of the actors in the crime. This information was known by the arresting officers at the time of the arrest. As such, assuming arguendo that the court finds that the identification procedure which led to appellee’s arrest was not necessarily suggestive, probable cause existed despite the fact that the police believed erroneously that an arrest warrant had been issued. See Commonwealth v. Irving, 485 Pa. 596, 560, 403 A.2d 549, 551 (1979); cert. denied Irving v. Pennsylvania, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980); Commonwealth v. Carter, 444 Pa. 405, 409, 282 A.2d 375, 377 (1971).

Because the suppression court did not reach the merits of the other issues raised in appellee’s motion to suppress and also because neither the prosecution nor the defendant addressed the other issues in the briefs, the matter must be remanded since “the [court’s] failure to reduce the [ ]record to specific findings of fact in relation to each of [defendant’s] claims prevents meaningful appellate review.” Knapp v. Knapp, 267 Pa.Super. 554, 555, 407 A.2d 48, 49 (1979) (footnote omitted) (emphasis added). See also Pa.R.Crim.P. 323(i) (“the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights.”).

Accordingly, we remand the matter with instructions to the court below “to review and rule on all arguments raised in defendants] suppression petition[ ] to prevent [a] piecemeal litigation of this case.” Commonwealth v. Ryan, 296 Pa.Super. 222, 232-233, 442 A.2d 739, 745 (1982).

Reversed and remanded. Jurisdiction is relinquished.

      . The order appealed is properly before us since the prosecution may appeal from an order granting suppression where the practical effect of the order is to terminate effectively or substantially handicap the prosecution’s case. See Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963) cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).

      . The record shows that although appellee sought to suppress both physical and identification evidence that there was no such evidence seized by the police.

      . Commonwealth v. Barnes, 482 Pa. 555, 562, 394 A.2d 461, 464 (1978) (no waiver because minor could not reject an opportunity to consult with a concerned adult); Commonwealth v. Graver, 473 Pa. 473, 375 A.2d 339 (1977) (no waiver where appellant was separated from his mother and later confessed without being given an opportunity to consult); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977) (no waiver where the alleged interested adult unilaterally decided not to participate in the consultation); Commonwealth v. Gaskins, 471 Pa. 238, 240, 369 A.2d 1285, 1286 (1977) (no waiver where there was "[n]o consultation prior to the waiver was permitted at the Police Administration Building” when appellant was interrogated by the police.); Commonwealth v. McFadden, 470 Pa. 604, 612, 369 A.2d 1156, 1160 (1977) (waiver where mother and son, a juvenile defendant, were "left in each other's presence for ten minutes,” there was an opportunity to consult.); Commonwealth v. Hailey, 470 Pa. 488, 511, 368 A.2d 1261, 1273 (1977) (plurality opinion) (no waiver where appellant’s first access to the advice of an interested adult was provided six hours after questioning during which time appellant had already incriminated himself and the prosecution “did not establish that the father, at the time of his belated entrance, was in fact provided an opportunity to confer....”); Commonwealth v. Lee, 470 Pa. 401, 403, 368 A.2d 690, 691 (1977) (no waiver where "appellant was not allowed to consult with his parents until after he had given his original confession.’’); Commonwealth v. Webster, 466 Pa. 314, 353 A.2d 372 (1975) (no waiver where prior to giving first confession, appellant, a juvenile, was not given the opportunity to consult with his mother before he waived his rights.).

      . Commonwealth v. Veltre, 492 Pa. 237, 241, 424 A.2d 486, 487-88 (1980) (Opinion in Support of Affirmance by Larsen, J., joined by Flaherty and Kauffman, J J.) (although probation officer was not an "interested adult, appellant’s waiver was knowingly, understandingly, and voluntarily made under the totality of the circumstances."); Commonwealth v. Thomas, 486 Pa. 568, 406 A.2d 1037 (1979) (Prison counsellor was not an interested adult); Commonwealth v. Smith, supra (no irrebuttable presumption that a parent is an interested adult; hence, where “the disinterest of the parent was graphically demonstrated, the parent was not an interested adult..”)

      . Commonwealth v. Hackett, 484 Pa. 43, 398 A.2d 651 (1979) (no waiver where no evidence that juvenile defendant’s mother was informed.); Commonwealth v. Graver, supra (no waiver where appellant’s mother was not informed "of the rights available to her son, the mother could not be termed an informed adult.”); Commonwealth v. Smith, supra (no waiver where no evidence that the "adult comprehended the rights of the minor”.); Commonwealth v. Hailey, supra (no waiver where the prosecution did not establish that "the father was in fact aware of the options available to appellant.’’); Commonwealth v. Webster, supra (no waiver "where prosecution’s evidence fails to show that mother was advised of accused’s Miranda rights".); Commonwealth v. Smith, 465 Pa. 310, 350 A.2d 410 (1976) (no waiver where mother was not informed of her son’s Miranda rights.). Commonwealth v. Rochester, 305 Pa.Super. 364, 451 A.2d 690 (1982).

      . In view of our disposition of this issue, we need not expound on the prosecution’s other contentions that because appellee was "streetwise” that he need not have access to an informed and interested adult and also the contention that the per se McCutchen rule should be replaced by a test requiring an examination of the totality of the circumstances. We need only reiterate the following:
      "In Commonwealth v. Veltre, 492 Pa. 237, 424 A.2d 486 (1981), our Supreme Court, for the first and only time, retreated from the per se nature of our right to consultation rule. This would seem to comport with the Commonwealth’s position regarding a shift in the law, although Veltre also involved a situation wherein at least some basic warnings to the juvenile were given. The precedential value of Veltre is dubious, however, since it involved an evenly split court, and since it was in fact the first and only such departure (made primarily on the basis that the particular defendant was so ‘streetwise’ and experienced with the law that he was capable of waiving his rights on his own). Furthermore, the opinion in Veltre clearly reaffirmed another principal of long-standing—that a judge's decision regarding an alleged waiver of a juvenile’s Miranda rights be made with reference to the totality of the circumstances."

        In re Miller, 294 Pa.Super. 322, 330, 439 A.2d 1222, 1226 (1982).


author: PER CURIAM:

text:
    454 A.2d 1088
    COMMONWEALTH of Pennsylvania v. Curtis Marion SAWYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 14, 1982.
    Filed Dec. 30, 1982.

      Robert L. Simmons, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   PER CURIAM:

Appellant, Curtis Marion Sawyer, was charged with multiple counts: 1) robbery , conspiracy, and simple assault. On January 8, 1980, the jury returned verdicts of guilty on all counts. Subsequently, appellant filed timely post-verdict motions which were denied. Appellant was then sentenced to a period of incarceration of not less than five nor more than ten years.

Appellant raises four (4) issues on appeal. These are: 1) whether trial counsel was ineffective for failing to call an alibi witness?; 2) whether the court’s removal of a juror was an abuse of discretion?; 8) whether trial counsel was ineffective in her representation of appellant?; and 4) whether the evidence was sufficient to support the conviction?

The Commonwealth’s evidence is as follows:

On August 4, 1979, at approximately 9:00 a.m., Tim Fallon was walking on Walnut Street in McKeesport on his way to his apartment. Just as he entered the doorway which was at street level, Donna Dixon, who had been walking behind Mr. Fallon with the appellant, suddenly entered the doorway blocking Fallon’s entrance. At the same time, appellant grabbed the victim by the shoulders preventing him from moving.

While Mr. Fallon was in the grasp of the appellant, Donna Dixon went through his pockets removing currency and his wallet which she gave to appellant. Appellant then removed Mr. Fallon’s money from the wallet and placed all the money which amounted to one hundred seventy ($170.00) dollars in his pocket. Subsequently, appellant threw the wallet on the pavement and shoved his aged victim to the ground. Appellant and Dixon then walked to the corner where they separated.

Just prior to these events, Gerald Tarr, who owned a business on Walnut Street, had observed Mr. Fallon pass his shop. Mr. Tarr also observed appellant and Ms. Dixon, both of whom he knew by name also, pass by a short distance behind Mr. Fallon.

Mr. Tarr had left his shop going to a job and was on the opposite side of the street approximately forty feet from the three parties and observed the robbery scenario. He immediately went back to his shop to summon the police, but before he could telephone he saw the police cruiser responding to a call about the robbery. Mr. Tarr approached the police vehicle and told Officer Charles Heidenfelder that he had observed the robbery and identified the perpetrators by name.

Officer Heidenfelder subsequently found Mr. Fallon about a block away, and after Mr. Fallon told him that he had been robbed and injured, the officer took him to the hospital where his left hand was sutured for a cut. Sawyer and Dixon were subsequently arrested. Ms. Dixon fled the jurisdiction and at the time of the trial, her whereabouts was unknown.

Regarding appellant’s first contention of error, to find a deprivation of the constitutional right to effective assistance of counsel, this Court must make an independent examination of the record.

“We cannot emphasize strongly enough, however, that our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.” (emphasis added).

Commonwealth v. Maroney, 427 Pa. 599, 604-05, 235 A.2d 349, 352-53 (1967); Commonwealth v. Owens, 454 Pa. 268, 272, 312 A.2d 378, 380 (1973).

More specifically, concerning a failure to call an alibi witness, our Court in Commonwealth v. Williams, 271 Pa.Super. 114, 120, 412 A.2d 601, 604 (1979) stated that “ineffectiveness of counsel may be found in cases where counsel fails to obtain the testimony of a known alibi witness whose testimony would cast a shadow on the Commonwealth’s case.”

Appellant contends that since appellant’s trial counsel wrote him a letter stating that she was trying to contact an alibi witness, and, in that, at trial this witness was not called to testify, appellant’s judgment should be vacated. First, mention must be made of this letter. Appellant’s trial counsel in the letter stated that, “I am trying to call Mr. Moss (the alibi witness) at the Realty Company. I am sure that you know that if he can’t remember what occurred on August 4th, he will be no good to our case and I won’t subpoena him.” Since the record before us is devoid of any further comment regarding why the alibi witness was not called to testify, we are presented with the same problem as faced by our Supreme Court in Commonwealth v. Jennings, 489 Pa. 578, 414 A.2d 1042 (1980).

Thus, instead of vacating the judgment as appellant contends, we, as the Court in Jennings, remand this issue to the trial court for an evidentiary hearing to determine the grounds for counsel’s conduct. Commonwealth v. Jennings, supra; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1975); Commonwealth v. Moore, 466 Pa. 510, 353 A.2d 808 (1976).

Regarding the second issue raised in this appeal, Pa.R.Crim.P. 1108(a) provides: “... Alternate jurors in the order in which they are called shall replace principal jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Thus, the decision to remove a juror is within the sound discretion of the trial judge. Commonwealth v. Saxton, 466 Pa. 438, 353 A.2d 434 (1976). However, before we can review the wide discretion afforded the trial judge in this regard, Commonwealth v. Black, 474 Pa. 47, 56, 376 A.2d 627, 632 (1977), there must be a sufficient record of competent evidence on the grounds for removal. Commonwealth v. Saxton, 466 Pa. 438, 442, 353 A.2d 434, 436 (1976); Commonwealth v. Grassmyer, 266 Pa.Super. 11, 17, 402 A.2d 1052, 1955 (1979). Thus, we remand so that a sufficient record may be made on the grounds for removal of the juror.

Appellant's third allegation of error involves a number of contentions of ineffective assistance of counsel. Appellant first contends that because testimony offered by the eyewitness to the crime conflicted with testimony offered by the victim, this constituted prohibited impeachment and trial counsel was therefore ineffective for failing to object to this testimony. In the present case, the Commonwealth offered two witnesses to the robbery and simple assault. First, the Commonwealth presented the aged victim and, then the Commonwealth offered an eyewitness to the crimes. The only aspect of difference in their testimonies regarding this incident was a minor time element difference concerning when this incident occurred. Our Supreme Court in Commonwealth v. Myrick, 468 Pa. 155, 164, 360 A.2d 598, 602 (1976), when confronted with a similar situation stated:

“It is well settled a party may contradict his own witness by independent evidence showing facts to be different from those testified to by such witness____ Such rule does not violate the general rule that one may not impeach. Impeachment is directed to the credibility of the witness for the purpose of discrediting him. It ordinarily furnishes no factual evidence. Contradiction on the other hand, is directed to the accuracy of testimony and supplies additional factual evidence to be considered along with such testimony. Such evidence as is relevant to the issues may not be excluded because it contradicts another witness called by the same parties, whether such witness is friendly or hostile.”

Talley v. Richart, 353 Mo. 912, 917, 185 S.W.2d 23, 26 (1945), quoted with approval in Commonwealth v. Staino, 204 Pa.Super. 319, 327-28, 204 A.2d 664, 668 (1964). Commonwealth v. Smith, 424 Pa. 544, 548-49, 227 A.2d 653, 656 (1967).

Since to object to the testimony as offered would have been useless, trial counsel was not ineffective. Commonwealth v. Tarver, 491 Pa. 253, 420 A.2d 438 (1980).

Appellant next raises the allegation that trial counsel’s failure to object to comments allegedly made by the district attorney urging the jury to disregard the victim’s testimony as to the time elements involved, constitutes ineffective assistance of counsel. While the closings of counsel were not reported, even if these alleged remarks were made, they would not be improper.

The district attorney’s function in his closing is to review the evidence and argue the Commonwealth’s strongest position to the jury. Since the Commonwealth’s strongest position would be for the jury to accept the eyewitness’s account of the time element over which the robbery and simple assault took place, the alleged remarks made by counsel during his closing were not improper. Thus, trial counsel could not be deemed ineffective for failing to object to them.

Appellant also contends that trial counsel was ineffective for not questioning the eyewitness regarding how the eyewitness knew appellant. The district attorney, during a conference with the court, told the appellant’s trial counsel that if appellant’s counsel would ask the eyewitness how he knew the appellant, the eyewitness would testify that the appellant, before the present incident occurred, had damaged the eyewitness’s store while trying to shoot appellant’s girlfriend. Since this testimony would be very damaging to appellant’s case, trial counsel was not ineffective for failing to cross-examine the eyewitness regarding his prior knowledge of appellant.

Appellant’s final contention of ineffectiveness regards an alleged conflict of interest due to appellant being represented by the public defender’s office at trial. Previously to this trial, appellant had been represented by the public defenders office on an unrelated charge of burglary, regarding which appellant subsequently alleged ineffective assistance of counsel on appeal. This appeal was pending at the time of trial on the instant charges. Thus, appellant alleges it was a conflict of interest for the public defenders office to represent the appellant at trial.

Appellant cites Commonwealth v. Bass, 273 Pa.Super. 405, 417 A.2d 712 (1980), in support of this position.

However, appellant is mistaken on this reliance on Bass, supra. In Bass, our Court remanded to the trial court for appointment of new counsel, not associated with the public defenders office, due to the appellant raising allegations of ineffectiveness of the public defenders office at trial. In the present case, private counsel has been appointed in this appeal so that the Bass standard has been met.

Therefore, appellant was not denied effective assistance of counsel since no actual conflict of interest existed. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Appellant’s final contention of error is that the evidence is insufficient to support the conviction. Viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, we believe the evidence is sufficient to support the conviction.

We are, therefore, constrained to rule that the allegation that trial counsel was ineffective for failure to call an alibi witness is of arguable merit and we will remand for an evidentiary hearing. The same ruling relates to the allegation that the trial court’s removal of a juror was improper.

In the event that, upon remand, the trial court finds that counsel was not ineffective, the judgment of sentence shall remain in full force and effect.

Affirmed in part and remanded for proceedings not inconsistent with the opinion.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 2701.

      . U.S. Const, amend. VI; Pa. Const. Art. I, § 9, P.S.

      . In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 825-26 (1975), the Supreme Court stated:
      "The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt---Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced____ The fact-finder is free to believe all, part, or none of the evidence.” (Citations omitted.)


text:
    454 A.2d 1092
    Shirleen BAKER, Individually and as Administratrix of the Estate of H. Earl Baker, Deceased, and Petrush & Miller, Ltd. v. AETNA CASUALTY & SURETY COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1981.
    Filed Dec. 30, 1982.
    Petition for Allowance of Appeal Denied Dec. 29, 1983.

      Nancy J. Gellman, Philadelphia, for appellant.
    John Miller, Beaver Falls, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

The orders appealed from granted plaintiff-appellee’s motion for summary judgment in her suit against the appellant insurance company [Aetna] for work loss benefits under the Pennsylvania No-fault Motor Vehicle Insurance Act [No-fault Act], following the death of her husband in an automobile accident. The orders also awarded interest on the benefits to be paid at the rate of 18%, and attorney’s fees, and denied Aetna’s cross-motion for summary judgment.

Appellee [Shirleen Baker] brought suit in assumpsit, individually and as administratrix of her husband’s estate, after the denial by Aetna of her claim for work loss benefits. The date of the fatal accident was February 10, 1978. On April 12, 1979, this court ruled that a widow whose husband was killed in an automobile accident was entitled under the No-fault Act to recover the work loss benefits which he would have recovered under his insurance contract if he had been permanently disabled. Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd, 491 Pa. 447, 421 A.2d 629 (1980) [hereinafter Heffner ]. On April 18, 1979, appellee presented a claim to Aetna for work loss benefits, under the rule of Heffner. By letter dated August 10, 1979, Aetna denied the claim for work loss benefits on the grounds that it did “not accept [Heffner] as the law of Pennsylvania”. Mrs. Baker’s complaint was thereafter filed on May 13, 1980. The supreme court’s opinion affirming this court’s decision in Heffner was filed on September 22, 1980.

The trial court awarded the work loss benefits, relying on Heffner, which, as is explained in the opinion by Judge WALKO, it determined should be applied retroactively to cases where the cause of action accrued before the decision but where the complaint was filed after the decision. The trial court based its award of interest on the applicable section of the No-fault Act, 40 P.S. § 1009.106(a)(2), and on the decision of our supreme court in Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981). The trial court based its award of attorney’s fees on the No-fault Act § 1009.107(3), finding that Aetna’s denial of the claim was without reasonable foundation.

I.

The Retroactivity of Heffner.

In Pennsylvania, judicial decisions are normally retroactive, and the construction placed by the court upon a statute becomes part of the act from the very beginning. August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981); Buradus v. General Cement Products Co., 159 Pa.Super. 501, 48 A.2d 883 (1946), aff’d, 356 Pa. 349, 52 A.2d 205 (1947). A court’s interpretation will be applied to cases arising from the time of the enactment of the statute unless vested rights are affected. Ettinger v. Central Penn National Bank, 634 F.2d 120 (3d Cir.1980); Kuchinic v. McCrory, 422 Pa. 620, 222 A.2d 897 (1966).

In two recent cases in Pennsylvania where our supreme court ruled that its decision was to be applied prospectively only, the court made it quite clear that prospective application of a new rule is still the exception rather than the usual practice. See Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1971) (supreme court adopted the net earnings measure of damages in survival actions, overruling century-old rule that damages were to be awarded on the basis of the decedent’s gross earnings). In deciding to make the new rule purely prospective the court said:

[W]e do not treat this portion of our opinion as establishing a precedent for a general use of the prospective application technique. That the application is unusual and should be used but sparingly we candidly admit. We are mindful, however, of more than the deserving efforts of appellants in seeking renovation of an unsound or outmoded legal proposition; we look to the ultimate justice of the particular case before us. We must attempt to weigh the equities and determine the injustice caused by allowing the century-old Radobersky rule its one last gasp in a case where the justified expectations of the plaintiffs would otherwise be defeated.

Incollingo v. Ewing, 444 Pa. at 311, 282 A.2d at 230. See also, Catherwood’s Trust, 405 Pa. 61, 173 A.2d 86 (1961).

Both of these decisions, Incollingo and Catherwood, raised the retroactivity issue because they involved the overruling of prior Pennsylvania supreme court decisions. Heffner was not such a case. It did not overrule any appellate court decisions. Similarly, the cases discussing retroactivity which are cited to us by the appellant insurance company concern appellate decisions which specifically overruled prior appellate decisions or long-standing doctrines. In each case the prevailing rule of retroactivity was followed. See August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981) (case overruling prior case to the contrary, and holding late notice of injury would release insurance companies only where late notice was prejudicial, to be applied retroactively);- Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (1980) (case abrogating doctrine of sovereign immunity to be applied retroactively); Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 375 A.2d 1285 (1977) (federal appeals court decision holding Pennsylvania rules on foreign attachment unconstitutional, overruling a decision to the contrary in the same court, to be applied retroactively); Leland v. J.T. Baker Chemical Co., 282 Pa.Super. 573, 423 A.2d 393 (1980) (supreme court decision proscribing use of words “unreasonably dangerous” in jury instructions in product liability cases to be applied retroactively).

Similarly, the three factor test described by the Supreme Court of the United States in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), by its terms seems to apply in particular to overruling decisions or at least to decisions which change the law:

[F]irst, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ... Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of non-retroactivity.”

Chevron Oil Co. v. Huson, 404 U.S. at 106-07, 92 S.Ct. at 355, 30 L.Ed.2d at 306. (Citations omitted.) (Emphasis supplied.)

With respect to appellant’s reliance on Chevron Oil, we do not agree with appellant that Heffner established a new principle of law. It did indeed decide for the first time on the appellate level that the No-fault Act provides for work loss benefits for deceased victims of automobile accidents. But recovery for loss of wages by a deceased accident victim is not unknown to the law. See wrongful death and survival actions, 42 Pa.C.S.A. §§ 8301, 8302 (Purdon Pamp. 1982), the case law thereunder, and Heffner, 265 Pa.Super. at 190, 401 A.2d at 1164. Were this court to have decided that there was no recovery of lost wages in a fatal accident under the No-fault Act, as was argued in Heffner,, that would have been a new principle of law.

Neither do we agree with appellant that Heffner overruled clear past precedent. In Chevron Oil the new principle of law whose retroactivity was in question was a direct, unexpected overruling of a series of appellate court cases. Expectations of the insurance industry, and an “understanding” by the Pennsylvania Department of Insurance that “the payment of work loss benefits for a deceased victim was not a loss projected by the [insurance] companies” cannot constitute, even in conjunction with common pleas court decisions, the type of precedent or long-standing doctrine the overruling of which might lead to a decision of non-retroactivity.

Thus the first Chevron Oil factor—that the decision to be applied must establish a new principle of law either by overruling precedent or by deciding an issue of first impression—simply does not apply. As this first factor is not met, we do not reach the other two factors.

Appellant also cites to us the test used by Justice LARSEN in August v. Stasak. This was first proposed by Justice TRAYNOR of the California Supreme Court in a law review article, and involves balancing of the hardships between the parties. See 492 Pa. at 554-55, 424 A.2d at 1330-31. But this test, again, applies specifically to overruling decisions, hence it is not applicable to a straightforward statutory interpretation case. We prefer therefore to borrow from the rationale of an opinion by Judge ALDI-SERT of the Court of Appeals for the Third Circuit, who had before him the retroactivity vel non of a district court construction of a Pennsylvania statute. See Ettinger v. Central Penn National Bank, 634 F.2d 120 (3d Cir.1980). Having described the general rule in Pennsylvania on retro-activity of decisions construing Pennsylvania statutes and the exception thereto, Judge ALDISERT stated:

“We conclude that the general Pennsylvania rule of statutory construction applies as set forth in Buradus: “the construction placed upon a statute by the courts becomes a part of the act, from the very beginning." We are not persuaded that there could have been vested rights[] based on a contrary interpretation of [the statute in question], because there were neither Pennsylvania decisions holding to the contrary nor legal scholarship pointing in that direction. Therefore, we cannot call into play the exception to the Pennsylvania rule under which full retroactivity is denied to those decisions that operate to the detriment of persons who have acted in reliance on an older rule. There simply was no clear “older rule” in Pennsylvania.

634 F.2d at 125-26.

Despite appellant’s arguments to the contrary, we find that Pennsylvania law clearly leads us to a holding of retroactivity in this case. As this court has already stated, in Heffner we decided an issue of statutory construction. We created no new right, and made no change in the law. See Sachritz v. Pennsylvania National Mutual Casualty Insurance Co., 293 Pa.Super. 483, 486, 439 A.2d 678, 680 (1981) aff'd, 500 Pa. 167, 455 A.2d 101 (1982); Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980). We now hold that the decision in Heffner is indeed applicable to cases where the cause of action accrued before that decision but the complaint was filed after, provided of course that the claim is not barred by the applicable statute of limitations.

II.

Attorney’s Fees

The No-fault Act provides at section 1009.107(3):

If, in any action by a claimant to recover no-fault benefits from an obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.

The trial court awarded an amount of $3,500.00, representing reasonable attorney’s fees incurred in prosecuting Mrs. Baker’s action against Aetna. The trial court determined that Aetna’s refusal to accept the superior court’s decision in Heffner as the law, followed by Aetna’s refusal to pay the benefits after the supreme court affirmed the superior court’s decision, on the ground that Heffner should not be applied retroactively, was a denial without reasonable foundation.

Until a decision of the superior court is overruled by the supreme court, that decision is the law of this Commonwealth. Townsend Trust, 349 Pa. 162, 168, 36 A.2d 438, 441 (1944). Since this court’s decision in Heffner, Aetna has persistently refused to pay the work loss benefits which we have interpreted the No-fault Act to provide. Appellant asserts that under Hayes v. Erie Insurance Exchange, 493 Pa. 150, 425 A.2d 419 (1981), the test of a reasonable denial of a claim is met. We disagree. In Hayes the claimant was a pedestrian who owned a car which was uninsured, in violation of the No-fault Act, and who was struck by a vehicle insured by Erie. This court held that the uninsured victim was entitled to recover basic loss benefits from the insurer of the vehicle which struck her and was not limited to the more restrictive benefits under the assigned claims plan of the No-fault Act. Hayes v. Erie Insurance Company, [Hayes, I.] 261 Pa.Super. 171, 395 A.2d 1370 (1978). The trial court, this court and the supreme court, in denying attorney’s fees, all agreed in that situation that Erie’s denial was not in bad faith, and that the issue created was novel and not without substance. Hayes I, 261 Pa.Super. at 176, 395 A.2d at 1373; Hayes II, 276 Pa.Super. 424, 428, 419 A.2d 531, 532 (1980), aff'd in part & rev’d in part, 493 Pa. 150, 160, 425 A.2d 419, 424 (1981). Further distinctions between, the situation in Hayes and the situation now before us are that, first, the claimant was herself in violation of the No-fault Act by failing to obtain insurance coverage, and second, the insurance company, by the time the claimant sued for interest at 18% and for attorney’s fees, had promptly paid the amount due together with interest at the rate of 6%. See Hayes II, 276 Pa.Super. at 427, 419 A.2d at 532. Most importantly, though, whereas in Hayes there was a reasonable question as to the liability of an insurer to its insured’s uninsured accident victim, here the liability of insurance companies for work loss benefits to the survivors of deceased victims has been made clear and unequivocal. And, as we have shown, retroactivity is the classic rule for judicial interpretation of statutes. Thus the attempted defense of non-retroactivity is without merit and has caused needless delay and expense to appellee. We are therefore of the view that under the rationale of Hayes, in the circumstances of this particular case, Aetna’s continuing denial of the claim has been without reasonable foundation.

We now hold that where, as here, the liability of insurance companies to pay certain benefits has been determined by an appellate court’s construction of the No-fault Act, and an insurance company subsequently denies those benefits to a claimant entitled, under the statute as interpreted by the court, to the benefits, the claimant shall be awarded reasonable attorney’s fees as provided in section 1009.107 of the No-fault Act.

We note that in its Order for the Entry of Judgment, the trial court awarded attorney’s fees in the amount of $3,500 to plaintiffs Petrush & Miller, Ltd., a professional corporation engaged in the practice of law, and claimant’s counsel of record. The Stipulation of Facts, filed by the parties on January 28, 1981 in the trial court, contains the following language which we understand to have been the basis for the trial court’s order awarding attorney’s fees:

21. In the prosecution of this action and in the assertion of her claims to “Work Loss” benefits as a result of the death of H. Earl Baker, deceased, plaintiff Shirleen Baker has incurred legal fees in an amount totaling $3,500.00; of this total, the amount of $3,500.00 was incurred after April 12, 1979, the date of the Superior Court’s decision in Heffner v. Allstate Insurance Co.; the amount of $2,000.00 was incurred after September 22, 1980, the date of the Pennsylvania Supreme Court’s decision in Heffner v. Allstate Insurance Co.

It thus would appear that the trial court granted attorney’s fees from the date of the superior court’s decision in Heffner (April 12, 1979), rather than from the date of the supreme court’s decision in Heffner (September 22, 1980). Although this matter was not argued to us by the parties, it is clear from the record that the parties recognized that the point in time from which an award of attorney’s fees is properly granted depends in part on the state of the law on a given issue.

The No-fault Act provides that the award of counsel fees shall follow a denial of liability by a carrier “without reasonable foundation.” We note that, following our supreme court’s grant of the petition for allowance of appeal in Heffner, that court received amicus curiae briefs submitted by the Pennsylvania Trial Lawyers Association on behalf of appellee Heffner, and by the Insurance Federation of Pennsylvania, the National Association of Independent Insurers, and the American Insurance Association on behalf of the appellant insurance carriers, in addition to briefs submitted by both sets of appellants and appellees in that consolidated appeal. Heffner, 491 Pa. at 450 n. 3, 421 A.2d at 631 n. 3. The question of whether a survivor was eligible for work loss benefits under the No-fault Act had not been reviewed by our appellate courts prior to Heffner, and we are not prepared to conclude that the question in Heffner was anything other than a significant question under the Act.

We have already stated that Aetna denied the claim for work loss benefits in its letter to appellee dated August 10, 1979 on the grounds that it did “not accept the [superior court’s decision in Heffner ] as the law of Pennsylvania,” and that it was in part because of this that the trial court decided that Aetna’s denial of benefits was without reasonable foundation.

The fact that our supreme court chose to consider the issue of survivor’s rights to recover work loss benefits, that there were amicus briefs on both sides of the argument, and that Justice NIX’s written opinion analyzed and resolved the question for the supreme court, signifies that we should not find a lack of reasonable foundation in Aetna’s refusal to pay work loss benefits until the supreme court rendered its decision.

However, for the reasons set forth in Part I of this opinion, we find no justification for Aetna’s further denial of benefits once the supreme court’s opinion in Heffner was filed on September 22, 1980. Although the Stipulation of Facts provides for an award of attorney’s fees in the amount of $2,000 for work performed between September 22, 1980 and January 28, 1981, the date when the Stipulation was filed, this case will be remanded to the trial court for a determination of reasonable attorney’s fees, based upon actual time expended, between the date of the supreme court’s decision in Heffner and the present time. The trial court’s award of attorney’s fees will be vacated for this purpose.

III.

The Interest On Overdue Benefits

The No-fault Act provides that No-fault benefits are overdue if not paid within thirty days of receipt by the insurance company of reasonable proof of the fact and amount of loss, and that overdue payments bear interest at the rate of eighteen percent (18%) per annum. See 40 P.S. § 1009.106(a)(2). Our supreme court has ruled that the 18% interest rate is owed regardless of the good faith of the insurer or the reasonableness of the delay. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981).

There is thus no question that interest at the rate of 18% is due. The dispute is as to the date from which the interest is due. The trial court appears to have calculated the interest as due from March 10, 1978, thirty days after the date of the fatal accident. Appellant argues that this is in error because, according to the No-fault Act, section 1009.106(a)(2), “[n]o-fault benefits are overdue if not paid within thirty days after receipt by the obligor of each submission of reasonable proof of the fact and amount of loss sustained____” (Emphasis added.) We agree in this instance with appellant. The No-fault Act provides at section 1009.106(a)(1):

No-fault benefits are payable monthly as loss accrues. Loss accrues not when injury occurs, but as allowable expense, work loss, replacement services loss, or surviv- or’s loss is sustained.

Benefits start to accrue, on the facts of this case, from the date of death. Payments become overdue, however, if not paid within thirty days of notice to the insurance company. Once a claim has been presented, the insurance company’s failure to pay the accrued benefits within thirty days of notice shall obligate the insurance company to add interest, at the rate of 18% per annum, to the accumulated unpaid benefits, for each month beyond the thirty day statutory period that the benefits remain unpaid.

In this case, the record shows that the application form for the claim for work loss benefits was submitted by Mrs. Baker to Aetna on May 31, 1978. Appellant suggests, and we agree, that thirty days after receipt of this claim by Aetna is the earliest due date for payment of these benefits. Interest at the rate of 18% therefore should be calculated from June 30, 1978 which is thirty days later. The order of the trial court should therefore be adjusted to reflect a calculation of interest on the benefits to be paid at the statutory rate of 18% from June 30, 1978, until the time of payment.

IV

Conclusion

The order of the trial court awarding work loss benefits is affirmed. The orders awarding attorney’s fees and interest are vacated. The case is remanded for a calculation of interest to be paid consistent with the views expressed in this opinion, and for a determination of reasonable fees due claimant’s attorneys as a result of appellant’s continuing denial of the claim and its prolongation of this action through appeal. Jurisdiction is not retained.

      . Act of July 19, 1974, P.L. 489, No. 176, Art. I et seq.; 40 P.S. § 1009.101 et seq. (Purdon Supp.1982).

      . See Record, Exhibit 2. See also Baker v. Aetna Casualty & Surety Co., No. 876 of 1980, slip op. at 9 (C.P. Beaver County, June 18, 1981).

      . Baker v. Aetna Cas. & Surety Co., No. 876 of 1980 (C.P. Beaver County, June 18, 1981). The Baker case was consolidated for oral argument with six other cases where the question, inter alia, of the retroactivity of Heffner was raised by the insurance companies involved: Reaten v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 101, 454 A.2d 1102, (1981); Thomas v. Aetna Casualty & Surety Co., 309 Pa.Super. 105, 454 A.2d 1105, (1981); Freeman v. Allstate Insurance Co., 309 Pa.Super. 101, 454 A.2d 1102, (1981); Giles v. Allstate Insurance Co., 309 Pa.Super. 111, 454 A.2d 1108, (1981); Rittner v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 114, 454 A.2d 1109, (1981); Shomper v. Aetna Life & Casualty Co., 309 Pa.Super. 97, 454 A.2d 1101, (1981).

      . See Babcock & Wilcox Co. v. Workmen’s Comp. Appeal Bd., 63 Pa.Commw. 61, 437 A.2d 778 (1981); Myers v. Unemployment Comp. Bd. of Review, 7 Pa.Commw. 640, 300 A.2d 917 (1973); Harry C. Erb, Inc. v. Shell Construction Co., Inc., 206 Pa.Super. 388, 213 A.2d 383 (1965); Philadelphia v. Schaller, 148 Pa.Super. 276, 25 A.2d 406 (1942), cert. denied, 317 U.S. 649, 63 S.Ct. 43, 87 L.Ed. 522 (1942). See also Commonwealth v. Krasner, 285 Pa.Super. 389, 414-15 n. 1, 427 A.2d 1169, 1182 n. 1 (1981) (Spaeth, J., dissenting); Commonwealth v. Lewis, 247 Pa.Super. 46, 58, 371 A.2d 1318, 1324 (1977) (Spaeth, J., dissenting). See generally Traynor, Transatlantic Reflections On Lee-ways and Limits of Appellate Courts, 1980 Utah L.Rev. 255; Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va.L.Rev. 201 (1965).

        . Compare Zemprelli v. Thornburgh, 47 Pa.Commw. 43, 56, 407 A.2d 102, 108 (1979), where the court held that its decision resolving an issue of first impression, which arose under a constitutional provision dealing with gubernatorial appointments, should be applied prospectively.

      . The Chevron Oil factors are referred to in the Pennsylvania cases discussed supra: Gibson, Schreiber and Leland.

      . In Chevron Oil itself the Supreme Court held that the Louisiana statute of limitations should not be applied retroactively to personal injury suits whose cause of action accrued prior to the Court's ruling, in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), that the state statute of limitations, rather than general admiralty law, applied to personal injury suits brought under a federal statute governing injuries occurring on the Outer Continental Shelf. Retroactive application would have deprived the plaintiff of any remedy. Rodrigue was a case of first impression in the Supreme Court and overruled a long line of appellate court cases. It was "quite unforseeable” that the earlier rule would be overturned. And finally, retrospective application of the new rule would produce substantial inequitable results, whereas prospective application would preserve the plaintiff’s right to a day in court. See 404 U.S. at 108, 92 S.Ct. at 356, 30 L.Ed.2d at 306-07. This situation is distinguished from the situation before us where prospective application of Heffner would deprive survivors of deceased victims of benefits to which our appellate courts have determined they are entitled under the No-fault Act.

      . See reproduced record at 65a, affidavit of former Chief Actuary, Pennsylvania Department of Insurance.

      . See Schreiber v. Republic Intermodal Corp., supra, where our supreme court, once it found that the overruling decision did not establish a new principle of law which might be applied prospectively, did not further consider the other two Chevron Oil factors. 473 Pa. at 622 n. 6, 375 A.2d at 1289 n. 6.

      . Justice LARSEN’s opinion was joined by two justices, as was Justice ROBERTS’ concurring opinion. Justice NIX concurred in the result.

      . Appellant argues that because vested rights and contracts cannot be altered or affected by later judicial construction, the "vested rights” exception applies here. Appellant appears to argue that its premium structure was based on its reliance on pre-Heffner authority, and also that the work loss beneficiaries here involved would be recovering benefits for which they had not paid. We do not view the within facts as rising to the level of “vested rights”, "contracts” or “detrimental reliance.”

      . See also the following language from Justice STEWART’S dissenting opinion in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972):
      An issue of the “retroactivity” of a decision of this Court is not even presented unless the decision marks a sharp break in the web of the law. The issue is presented only when the decision overrules clear past precedent, ... or disrupts a practice long accepted and widely relied upon____
      407 U.S. at 381-82 n. 2, 92 S.Ct. at 2180 n. 2, 33 L.Ed.2d at 9 n. 2 (citations omitted).

      . Compare Gurnee v. Aetna Life & Casualty Co., 55 N.Y.2d 184, 433 N.E.2d 128, 448 N.Y.S.2d 145 (1982), cert. denied, — U.S.-, 103 S.Ct. 83, 74 L.Ed.2d 79 (U.S.1982). In Gurnee the New York Court of Appeals held that its earlier decision construing the New York no-fault statutory phrase "first party benefits” should be applied retroactively to all claims not barred by the statute of limitations.

      . See supra note 2 and p. 1098.

      . Our decision to vacate the order awarding interest to permit the trial court, on remand, to calculate the interest in accordance with the views expressed in this opinion does not militate against the award of attorneys fees as set forth in Section II of this opinion. Appellant’s position throughout this litigation has been that work loss benefits are not due in this case. Appellant has not argued, either in its brief or at oral argument, that the dispute as to calculation of interest due would support the total refusal to tender the work loss benefits claimed by appellee.