McClinton v. White
| Decision Date | 13 March 1981 |
| Citation | 427 A.2d 218,285 Pa.Super. 271 |
| Parties | Marnee B. McCLINTON, administratrix of the Estate of Robert B. McClinton, Deceased, and Harry Toney, Administrator of the Estate of Dino Toney, Deceased, v. Barbara WHITE, Administratrix of the Estate of James C. McClinton, Jr., Deceased, and Lee C. Smith, Appeal of Barbara WHITE, Administratrix of the Estate of James C. McClinton, Jr., Deceased. |
| Court | Pennsylvania Superior Court |
Argued Nov. 14, 1979. [Copyrighted Material Omitted]
Samuel C. Holland, Beaver, for appellant.
Robert J. Campbell, Beaver Falls, for Marnee B. McClinton appellee.
Frank C. Lewis, Beaver Falls, for Harry Toney, appellee.
Before CERCONE, President Judge, and MONTGOMERY and LIPEZ, JJ.
This is an appeal from a judgment in favor of appellees under the Survival Act. [1] Appellees' decedents Robert B McClinton, age 16, and Dino Toney, age 18, were killed instantly in an auto accident. Following a bifurcated trial the jury returned verdicts on the liability portion of the case against appellant Barbara White, administratrix of the Estate of James C. McClinton, Jr. [2] Thereafter verdicts were returned awarding each appellee damages in the amount of $170,000. Appellant's motions for new trial and judgment n.o.v. were denied and judgments were entered on the verdicts. This appeal, limited to the issue of damages, followed. Appellant cites a number of alleged errors, but we find it necessary to discuss only that one which, in our opinion, warrants reversal of the judgments.
The trial court instructed the jury that each estate was entitled to recover the present value of its decedent's loss of earning potential during his work life expectancy. To calculate the net loss of earning potential, the jury were instructed to deduct from each decedent's total earning potential "the probable cost of his necessary, economic living expenses and personal maintenance, those expenses required to sustain his life until the day of his retirement, whatever day you determine that would be." (R. 360) Recognizing, no doubt, the ambiguity inherent to the use of the term "personal maintenance," the trial court further instructed the jury as follows:
In considering the probable cost of maintenance, it should be pointed out to you that that amount is personal maintenance, it is that figure or that amount of money that you estimate or determine he would have spent on himself individually, personally, not what he would have spent on a wife, not what he would have spent on children, not on what he might have spent on parents, relatives or friends, not what he might have given away as gifts, but what he would have spent to provide himself with the necessities of life; that is, what he would have spent to sustain his life, to subsist and to live on. In other words, what he would have spent for those things which are essential to the individual's personal and physical subsistence....
(R. 361) Appellant contends that the trial court erred in defining personal maintenance cost in terms of subsistence [3] level expenses. She argues that the deduction for maintenance costs is not limited to the amounts necessary to sustain life or to provide for physical subsistence, but, instead, includes all amounts which the decedent would have been reasonably likely to have spent upon himself during his lifetime. She also suggests that the proper measure of damages in these survival actions should have been based upon what each decedent would reasonably have accumulated and have remaining as a part of his estate at his death. While we do not subscribe to appellant's accumulated savings theory of damages for lost future earnings, we do find that the trial court's description of the maintenance expense deduction was overly restrictive and provided the jury with an incorrect standard for determining damages.
A consideration of the nature of survival actions is helpful in ascertaining the proper characteristics of the maintenance expense deduction. At common law a right of action for personal injuries did not survive the death of the injured person. See 2 Standard Pennsylvania Practice 26 et seq. This rule has been modified over time by various statutes until today all causes of action survive the death of a party. See 20 P.S. §§ 3371-3373; and 42 Pa.C.S.A. § 8302. See also, Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975).
A survival action must be distinguished from an action for wrongful death. In Pennsylvania, a survival action compensates a decedent's estate for various categories of damage sustained by the decedent alone, whereas a wrongful death action is designed solely to deal with the economic impact of the death upon certain statutorily designated persons. Frazier v. Oil Chemical Company, 407 Pa. 78, 179 A.2d 202 (1962). 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. The estate may recover for the loss of decedent's past and future earning power, for the decedent's pain and suffering prior to death, and for the cost of medical services, nursing, and hospital care provided to decedent. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963). The estate may not, however, recover funeral expenses since, obviously, the decedent could not have brought an action for these expenses at the time of his death. See 2 Feldman, Pennsylvania Trial Guide § 33.15 and cases cited therein.
In contrast, a cause of action for wrongful death [4] is possessed by certain specified relatives of the deceased who recover in their own behalf and not as beneficiaries of the estate. Damages, which are based on the pecuniary loss suffered by the statutory beneficiaries, are determined from the standpoint of the beneficiaries, not from that of the deceased. Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 401 A.2d 1160 (1979). [5] Piacquadio v. Beaver Valley Service Co., 355 Pa. 183, 49 A.2d 406 (1946); See also, 2 Feldman Pennsylvania Trial Guide § 33.14.
While a wrongful death action is distinct from a survival action, certain of the damages of each may arise from a common fund: the lost earning power of the decedent. Thus, in order to avoid a duplication of damages, the Pennsylvania Rules of Civil Procedure provide that if independent survival and wrongful death actions are pursued they must be consolidated for trial, Pa.R.C.P. No. 213(e), and "Where the actions are tried together, the jury must bring in separate verdicts in the wrongful death action and the survival action." 2 Feldman, Pennsylvania Trial Guide § 33.6. See also Frankel v. Burke's Excavating, Inc., 223 F.Supp. 945 (E.D.Pa.1963).
Despite the fact that the survival of personal actions was a creation of statute, the statutes do not speak to the issue of damages. The proper measure of damages in survival actions has thus been left to judicial determination. Incollingo v. Ewing, 444 Pa. 299, 304, 282 A.2d 206 (1971). Perhaps because of this lack of a statutory standard, the measure of damages was for a time subjected to varying and somewhat inconsistent formulations. Thus, damages, for a time, differed, depending upon whether the action was filed prior to or subsequent to the death of the victim. [6] However, these inconsistencies were eliminated and the current rule was forcefully set forth by the Supreme Court in Incollingo, supra, at 309, 282 A.2d at 229: "We hold that in all survival actions, damages are properly to be measured by decedent's pain and suffering and loss of gross earning power from the date of injury until death, and loss of earning power less personal maintenance expenses from the time of death through decedent's estimated working lifespan." [7] In addition, in order to avoid duplication of damages for loss of future earning power, survival action damages must be diminished by any amounts recoverable under the Wrongful Death Act. See Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104, 100 A.2d 854 (1949); First National Bank of Meadville, Pa. v. Niagara Therapy Mfg. Co., 229 F.Supp. 460 (W.D.Pa.1964). And where the decedent is a minor, damages for loss of future earning power are limited to the earnings the decedent would have generated during his adult life. Prince v. Adams, 229 Pa.Super. 150, 154, 324 A.2d 358 (1974).
Incollingo, however, was not concerned with the delineation of the expenses which are to be deducted as items of personal maintenance. Nor has any Pennsylvania appellate court attempted to define with specificity the items of expense that are to be included within the personal maintenance deduction. It is this question of the proper parameters of the personal maintenance deduction which is the point at issue in the present appeal.
Prior to Murray v. Philadelphia Transportation Company, 359 Pa. 69, 58 A.2d 323 (1948), survival action damages for lost future earnings had been measured by the decedent's estimated loss of gross earnings. See Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). The Court in Murray, recognizing that this rule overcompensated the estate by awarding it damages for expenses which, as a result of the death, would never be incurred by the estate, set forth the requirement that gross earnings be diminished by the decedent's probable cost of maintenance. This "net earnings" element was stated as follows:
"In cases under the Survival Act of 1937, supra, the...
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