Harvey v. Hassinger

• Citation: 461 A.2d 814,315 Pa.Super. 97
• Parties: Judy D. HARVEY, Administratrix of the Estate of Richard L. Harvey, Deceased and Judy D. Harvey, In her own right, Appellant, v. David Lee HASSINGER.
• Decision Date: 03 June 1983
• Court: Superior Court of Pennsylvania

Page 814

461 A.2d 814

315 Pa.Super. 97

Judy D. HARVEY, Administratrix of the Estate of Richard L Harvey, Deceased and Judy D. Harvey, In her own right, Appellant, v. David Lee HASSINGER.

Superior Court of Pennsylvania.

Argued May 11, 1982.

Filed June 3, 1983.

Jack E. Feinberg, Philadelphia, for appellant.

Joseph W. Mullin, Huntingdon, for appellee.

Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.

CAVANAUGH, Judge:

This case involved a trespass action for wrongful death and survival action arising out of the death of Richard L. Harvey who was killed when struck by an automobile which was driven by the appellee, David Lee Hassinger. Mr. Hassinger had been drinking heavily on November 8, 1975. The testimony established that he consumed a pint of liquor and a quantity of beer in excess of twenty quarts. While in this intoxicated condition he attempted to operate his motor vehicle and in the process drove up on the sidewalk and struck Mr. Harvey. As a result of the injuries received in the accident which occurred on the early morning of November 9, 1975, Mr. Harvey died.

Judy D. Harvey, as administratrix of her deceased husband's estate and in her own right commenced an action in wrongful death and a survival action against appellee. Trial was held before Terrizzi, J. and a jury and a verdict was entered against the appellee in the amount of $45,000.00 in the wrongful death action and for $250,000.00 in the survival action. Punitive damages were also awarded in the amount of $10,000.00. Appellee filed motions for new trial and for judgment non obstante verdicto and his motion for new trial was granted by Taylor, P.J. An appeal has been taken to this court from the order awarding a new trial.

The first issue is whether punitive damages were properly awarded by the jury in this case. With respect to the wrongful death action it is clear that punitive damages are not allowed. The Wrongful Death Act, Act of April 26, 1855 P.L. 309, 12 P.S. § 1602 sets forth the persons entitled to recover damages. As pointed out in the early case of Pennsylvania Railroad Company v. Vandever, 36 Pa. 298, 304 (1860): "The sum to be recovered [under Pennsylvania's Wrongful Death Act] is, therefore, the pecuniary loss which the plaintiffs have suffered from the death of their relative; and this is made more certain by the provision, that no other relative, and of course no other person, than those named, can recover anything ..." (Emphasis added). See also, Pennsylvania Railroad Company v. Henderson, 51 Pa. 315 (1865); Palmer v. Philadelphia, Baltimore and Washington Railroad Company, 218 Pa. 114, 66 A. 1127 (1907). The question as to whether punitive damages are permitted in a wrongful death action is set to rest in Pennsylvania Railroad Company v. Henderson, 51 Pa. 315, 323 (1865) wherein it is stated that damages recoverable under Lord Campbell's Act, the forerunner of Pennsylvania's Wrongful Death Act do "not include the loss or suffering of the deceased nor does it include the mental suffering of the survivor occasioned by such death, and it excludes all questions of exemplary damages. " (Emphasis added).

A more difficult question is whether punitive damages are allowed under The Survival Act. The law pertaining to survival actions in effect at the time of this accident on November 9, 1975, is found in the Act of June 30, 1972, P.L. 508 No. 164, 20 P.S. § 3371 and provides:

§ 3371. Actions which survive

All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.

In a decision prior to the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq., the federal district court allowed punitive damages where reprehensible conduct resulted in death. See Hennigan v. Atlantic Refining Company, 282 F.Supp. 667 (E.D.Pa.1967), affirmed 400 F.2d 857 (3 Cir.1968). The court stated at 282 F.Supp. at 683 "No mention is made [in The Survival Act] of damages per se. We see no reason to read into the act a limitation on the nature or amount of recovery. Certainly, the legislature was aware that the courts of Pennsylvania recognized punitive damages in an appropriate case, when they passed the act." In another pre-no-fault decision, a trial court considered the question of punitive damages in a survival action. In Cramer v. Noonan Engineering Company, 86 York L.R. 160 (1973) the plaintiff brought only a survival action seeking compensatory damages and in a separate count sought punitive damages. Parenthetically, it is noted in our case that the appellant in her trespass action for wrongful death and survival action did not seek punitive damages in the complaint. In the Cramer case the lower court dismissed the defendant's preliminary objections to the complaint and held that while punitive damages are excluded in a wrongful death action, they may be claimed in survival actions. The court stated at 86 York L.R. 162:

In survival actions, however, being causes which the decedent could have asserted on his own behalf but for his death for injuries and loss inflicted upon him, we hold, as did Hennigan, that there appears to be no basis in precedent or in logic to exclude the punitive damages which the decedent could have sought had he not died.

The appellant contends that the jury properly awarded punitive damages in the instant case and relies on Focht v. Rabada, 217 Pa.Super. 35, 268 A.2d 157 (1970). That case was also decided prior to the effective date of the Pennsylvania No-Fault Motor Vehicle Insurance Act, which became effective on July 19, 1975. In the Focht case it was determined that punitive damages were permissible when the act was performed "with reckless indifference as well as with bad motive." 217 Pa.Super. 38, 268 A.2d 159.

In a survival action the decedent's estate may recover punitive damages only if the decedent could have recovered them had he lived. As pointed out in McClinton v. White, 285 Pa.Super. 271, 277, 427 A.2d 218, 221 (1981):

A survival action, unlike a wrongful death action, is not a new cause of action, but, "merely continues in his personal representative the right of action which accrued to the deceased at common law ...." Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). In a survival action, the cause of action arises out of the injury, not out of the death. The estate is substituted for the decedent, and its recovery is based upon the rights of action which were possessed by the decedent at his death.

To determine whether the decedent could have recovered punitive damages had he lived we must turn to the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq. which was in effect at the time of the accident in this case. The Act in Section 301 abolishes tort liability for injuries except in certain ennumerated situations. See 40 P.S. § 1009.301.1 The case of Reimer v. Delisio, 296 Pa.Super. 205, 210, 442 A.2d 731, 733 (1982) has placed beyond peradventure the rule that punitive damages are not recoverable under the No-Fault Act for gross negligence or reckless disregard as the court stated therein:

We are persuaded that the initial clause of Section 1009.301 of our No-Fault Act explicitly abolished all causes of action falling within the ambit of the Act; and, consequently abolished punitive damages for gross negligence, reckless disregard, and the like. Subsection (a) of that Section provides:

Partial Abolition.--Tort liability is abolished with respect to any injury that takes place in this State in accordance with the provisions of this act if such injury arises out of the maintenance and use of a motor vehicle, except that....

There follow exceptions which do not specifically refer to liability for gross negligence, although intentional conduct is so excepted. ¹

We are not persuaded, either, that punitive damages for recklessness or gross negligence are implicitly preserved in subsections (a)(4) or (a)(5) of Section 301 of the Act. Subsection (a)(4) provides:

A person remains liable for loss which is not compensated because of any limitation in accordance with section 202(a), (b), (c) or (d) of this act...." [Emphasis added.]

(Emphasis added).

In the instant trespass action there is no indication that the appellee engaged in intentional misconduct as far as causing the death of Mr. Harvey. The appellant contends with reference to punitive damages that they are proper where "an individual's conduct is grossly negligent and whose conduct is outrageous."

The trial court charged on the question of punitive damages as follows:

If you find that the Defendant's conduct was a substantial factor in bringing about the harm to the Plaintiff's decedent and if you find that the conduct of the Defendant was outrageous, you may award punitive damages as well as compensatory damages about which we have just talked, in order to punish the Defendant for his conduct and to deter the Defendant and others from the commission of like acts in the future.

A person's conduct is outrageous when he acts with a bad motive or when he acts with reckless indifference to the interests of other people.

Counsel for the appellee specifically objected to this portion of the charge on punitive damages and the issue is preserved for appeal. It is not proper to award punitive damages in a survival action where the claim for such damages is based on the gross negligence of the defendant. The court erred in charging on punitive damages and the jury's verdict as to punitive damages must be set aside.

The second issue is whether appellant's closing argument to the jury contained statements that were so unfair, inflamatory and prejudicial as to require a new trial. Counsel for the appellant referred to two defense witnesses, Mrs. Springer and ...