Slaseman v. Myers

• Decision Date: 21 January 1983
• Citation: 455 A.2d 1213,309 Pa.Super. 537
• Parties: Almeda B. SLASEMAN, Administratrix of the Estate of James Slaseman, Deceased, Appellant, v. Kathryn M. MYERS.
• Court: Pennsylvania Superior Court

455 A.2d 1213

309 Pa.Super. 537

Almeda B. SLASEMAN, Administratrix of the Estate of James

Slaseman, Deceased, Appellant, v. Kathryn M. MYERS.

Superior Court of Pennsylvania.

January 21, 1983

Argued June 24, 1981.

William B. Anstine, Jr., York, for appellant.

Frank J. Goldenberg, York, for appellee.

Before PRICE JOHNSON and SHERTZ.

JOHNSON Judge:

The order appealed from in this case dismissed the plaintiff/appellant's exceptions and ordered entry of judgment ^[1] in favor of the plaintiff/appellant in the amount of $11,234.51 in her wrongful death action, and in the amount of $128,173.77 in her survival action against the defendant.

Appellant presents us with four questions: (1) What is the function of a reviewing court where a judge sitting without a jury has failed to make specific findings? (2) Was the verdict inadequate? (3) Did the trial court err in not making specific findings of fact? (4) Should the trial court have applied the rule of Kaczkowski v. Bolubasz, 491 Pa. 571, 421 A.2d 1027 (1980), to the case before ordering the entry of final judgment? (See note 1 supra.) Appellant asks this court to make an independent finding that the verdict should be at least $340,000.00 and to instruct the trial court to enter such a verdict accordingly.

The verdict of the trial court after the two day non-jury trial found the defendant/appellee negligent, which negligence it found to be the cause of the death of the decedent husband; it found the decedent non-negligent; and it rendered the verdict as indicated above. The verdict did not contain any special findings of fact.

Our supreme court has said that where the decision in a non-jury trial is in the form of a naked verdict without findings of fact, the appellate court must make an independent review of the record. Lewkowicz v. Blumish, 442 Pa. 369, 275 A.2d 69 (1971) (action in equity to quiet title); Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 261 A.2d 319 (1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970) (assumpsit action brought at a time when the applicable statute ^[2] provided that a non-jury court need not state findings of fact unless requested by counsel). This we shall do. However, the scope of our review is limited to whether the trial court's findings of fact are supported by competent evidence and whether or not the lower court committed an error of law. E.I. duPont de Nemours & Co v. Berm Studios, Inc., 211 Pa.Super. 352, 236 A.2d 555 (1967).

Similarly, where the issue raised on appeal is the inadequacy of the verdict, the "injustice of the verdict should stand forth like a beacon." Elza v. Chovan, 396 Pa. 112, 118, 152 A.2d 238, 241 (1959). A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Dougherty v. Sadsbury Township, 299 Pa.Super. 357, 445 A.2d 793 (1982); Rutter v. Morris, 212 Pa.Super. 466, 243 A.2d 140 (1968). If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdict merely because the damages are less than the reviewing court might have awarded. Id.

The facts of this case, gleaned from a careful review of the record and of the trial transcript, are as follows. At twelve noon on June 20, 1977, plaintiff/appellant's husband, James Slaseman, was riding his motorcycle north on a highway in York County. He was wearing a helmet and had his headlights on. Defendant/appellee Kathryn Myers was riding in her automobile in the opposite direction. At an intersection Myers turned left from her lane into the path of the oncoming motorcycle. The road was clear, straight and dry. The motorcycle collided with the car, and Slaseman was thrown off the motorcycle, over the cars and into the southbound lane, where he landed on the highway. Within minutes there were emergency services people at the scene, but Slaseman was pronounced dead at the hospital an hour later. His death was caused by severe skull fractures. He also suffered a compound fracture in the arm, an injured knee, and contusions and abrasions all over his body. A witness to the accident testified that immediately after landing in the road Slaseman tried to get up, but was unable to. His eyes were open. He was bleeding profusely. His arm was twisted and bleeding heavily. The witness testified that she spoke to Slaseman, as did a bystander, in an attempt to comfort him, and that he responded by lying back down as they suggested.

The ambulance attendant, a registered nurse, arrived on the scene some minutes later. At trial she testified that Slaseman's behavior when she attempted to treat him as he lay in the road was that of a conscious person--moaning, breathing rapidly, yet calming down when touched or spoken to. N.T. at 34. She further testified that she attempted chiefly to make an open airway but was unable to open his mouth in order to do so until he "relaxed much more on the way in the ambulance." N.T. at 36.

The police officer who reached the scene very shortly after the accident testified as to the accident scene, the position and condition of the vehicles, and the condition of the road. On cross-examination, however, he expressed the view that Slaseman was unconscious after the accident. N.T. at 13-14. The coroner who examined Slaseman's body after death stated that the skull fractures he suffered would have rendered him unconscious. N.T. at 60.

Slaseman's physician, an osteopath, testified to Slaseman's physical strength and excellent health. Slaseman was 55 years old at the time of his death. Slaseman neither smoked nor drank and had no physical ailment of any kind. There was also some testimony as to the longevity of his family. Based on government actuarial tables, Slaseman's life expectancy was another twenty years. The physician testified that Slaseman was a "better than average candidate for longevity because of his physical condition and background." N.T. at 52-53.

An accountant, the comptroller for Slaseman's employer, testified that Slaseman worked as a night terminal supervisor for a trucking company. He was in the top three out of fifteen in seniority. He was considered a good worker and much liked by his co-workers. In the year of his death he would have earned $19,888.68. He had enjoyed regular raises each year. He was a member of a union and his contract was negotiated as part of the union contract. The company comptroller testified that he would have averaged pay raises of 6% over each of the next ten years, should he have retired at age 65, or over each of the next fifteen years, should he have retired at age 70.

There was testimony from the union business agent as to the pension Slaseman would have earned if he had worked to retirement age. There was also testimony as to the fringe benefits to which Slaseman was entitled as a union worker, specifically "health and welfare, which is eye, dental, prescriptions, office calls, major medical." N.T. at 130. "All his health and welfare ... benefits would apply to his family up until if he had a child 18 or 19, or unless they were going to college, and then they would be covered until they are 23 ... His wife also." N.T. at 131. None of these benefits continues after the death. N.T. at 143.

Slaseman was married. Until 1978 his wife worked as a sewing machine operator, but because of arthritis she has been forced to stop working. There were four children to the marriage, two of whom were living at home at the time of the accident, a son working, a daughter going to a training school. Since the accident the daughter lives at home and works, the son travels and returns home intermittently.

Before his untimely death Slaseman worked the night shift. During the day he worked in the family garden, growing vegetables and fruit trees. The family testified that he spent about 39 hours a week working in the house and yard, and helping his wife with chores and errands. Their free time was spent camping or fishing. The family members testified to the affectionate, considerate relationship between Mr. and Mrs. Slaseman, and to the supportive and instructive time spent between father and children.

An actuary testified as to the damages caused to his family by Slaseman's death, based on the figures with which he was provided, and on the various U.S. government tables regularly used by actuaries for such calculations. The actuary calculated the past lost earnings (from date of death till trial) as $22,193.00 less the cost of maintenance, leaving $18,713.00. N.T. at 206. For the future lost earnings he made calculations based on Slaseman's working either till age 65 or till age 70. Up to age 65 the future earnings, less cost of maintenance of $3,000.00 per annum, based on the figure estimated by the family as well as on the life tables reduced to present value, was $140,001.00. Up to age 70, the present value of the future lost earnings less personal maintenance was $237,336.00. N.T. at 210. The net figure for past and future lost earnings was $158,714.00 up to age 65, and $256,049.00 up to age 70. N.T. at 211. The value of the lost pension was calculated to be $59,826.00 for age 65, and $34,462.00 for age 70. N.T. at 211-12. The actuary also calculated the lost Social Security benefits--after retirement at 65, these would be $38,914.00, and after retirement at age 70, these would be $19,480.00. N.T. at 213-14. The actuary then showed the cost to the employer of providing the fringe benefits Slaseman enjoyed, which was currently $1,539.00. N.T. at 215. Based on that figure the actuary calculated the value of the...