McMichael, T. v. McMichael, M. & P&J Const, Aplts.

[J-25AB-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
TINA MCMICHAEL, INDIVIDUALLY AND : No. 50 WAP 2019
AS EXECUTRIX OF THE ESTATE OF :
SETH W. MCMICHAEL, DECEASED : Appeal from the Order of the
: Superior Court entered April 15,
: 2019 at No. 721 WDA 2018,
v. : affirming in part and reversing part
: the Judgment of the Court of
: Common Pleas of Beaver County
MICHELLE J. MCMICHAEL, EXECUTRIX : entered May 7, 2018 at No. 11370-
OF THE ESTATE OF PETER D. : 2013 and remanding.
MCMICHAEL, DECEASED; JANICE :
MCMICHAEL; P&J CONSTRUCTION AND : SUBMITTED: April 16, 2020
LANDSCAPE NURSERY LLC; AND :
MARKWEST ENERGY PARTNERS, L.P. :
:
:
APPEAL OF: MICHELLE J. MCMICHAEL, :
EXECUTRIX OF THE ESTATE OF PETER :
D. MCMICHAEL, DECEASED, AND P&J :
CONSTRUCTION AND LANDSCAPE :
NURSERY LLC :
TINA MCMICHAEL, INDIVIDUALLY, AND : No. 51 WAP 2019
AS EXECUTRIX OF THE ESTATE OF :
SETH W. MCMICHAEL, DECEASED, : Appeal from the Order of the
: Superior Court entered April 15,
Appellee : 2019 at No. 795 WDA 2018,
: affirming in part and reversing part
: the Judgment of the Court of
v. : Common Pleas of Beaver County
: entered May 7, 2018 at No. 11370-
: 2013 and remanding.
MICHELLE J. MCMICHAEL, EXECUTRIX :
OF THE ESTATE OF PETER D. : SUBMITTED: April 16, 2020
MCMICHAEL, DECEASED, AND P&J :
CONSTRUCTION AND LANDSCAPE :
NURSERY LLC, :
:
Appellants :
OPINION
JUSTICE TODD DECIDED: NOVEMBER 18, 2020
In this appeal by allowance, we consider whether the trial court abused its
discretion in denying a motion for a new trial following a jury award of zero dollars in
damages in a wrongful death action. Upon review, we conclude that the trial court erred
in denying a new trial with respect to the non-economic damages award,1 and, therefore,
we affirm in part and reverse in part the Superior Court’s decision remanding for a new
trial, limiting the new trial on remand to non-economic damages.
Peter McMichael and his wife, Janice McMichael, entered into a lease with
MarkWest Energy Partners, LP (hereinafter “MarkWest”) whereby MarkWest was to
install a natural gas pipeline on the McMichaels’ property in Beaver County,
Pennsylvania. The lease required MarkWest to hire P&J Construction and Landscaping
Nursery, LLC (hereinafter “P&J”), which was owned by the McMichaels, to perform the
tree clearing on the property in preparation for the installation of the pipeline. Peter
McMichael, on behalf of P&J, hired his 51-year-old nephew, Seth McMichael (hereinafter,
“Decedent”); Decedent’s son, David; and another individual, Michael Hudak, all of whom
were familiar with the process of tree removal, to assist in clearing the trees on the
property. On January 25, 2013, while Peter McMichael was supervising the tree clearing
process, he simultaneously was using a bulldozer to clear an access road. As a result,
Peter would periodically turn his back to the tree cutters. At a time when Peter’s back
was turned, a tree cut by Hudak split and fell towards Decedent, striking him from behind
and killing him.
On August 30, 2013, Tina McMichael, Decedent’s widow and executrix of his
estate (hereinafter, “Wife”), filed a wrongful death and survival action on behalf of herself,
1 As discussed infra, wrongful death damages may include both economic and non-
economic damages.
[J-25AB-2020] - 2
individually, and on behalf of Decedent’s estate, against Peter McMichael, Janice
McMichael, P&J, and MarkWest, raising claims of premises liability, negligence, and
negligent supervision.2 At a jury trial, Wife presented the testimony of an economic
expert, Dr. William Houston Reed, who calculated Decedent’s projected lost income at
various ages. Wife also testified that Decedent had performed home repairs, mowed the
lawn, did 80% of the cooking, and drove her to work in inclement weather. She stated
that, as a result of her husband’s death, she was unable to service the furnace, and had
to work overtime in order to pay bills. Notably, however, neither the economic expert, nor
Wife herself, proffered an estimated value of the loss of these household contributions by
Decedent, nor did Wife offer any evidence as to the cost of hiring someone to perform
these tasks.
The jury awarded Wife, as executrix of Decedent’s estate, $225,000 in survival
damages, which was reduced to $135,000 to reflect the jury’s finding that Decedent was
40% negligent, and, of particular import in this appeal, zero dollars in wrongful death
damages.3 Wife sought a new trial on her claims for wrongful death and survival
damages, and P&J sought judgment notwithstanding the verdict, or a new trial on liability.
With regard to Wife’s motion, and relevant to the instant appeal, the trial court concluded,
inter alia, that Wife failed to present sufficient evidence of the value of her economic and
non-economic loss for wrongful death damages and, thus, the jury was free to award zero
dollars in damages on the wrongful death claim. Specifically, with regard to the evidence
of economic loss, the court stated:
2 The trial court dismissed the complaint against Janice McMichael following preliminary
objections, and Wife settled with MarkWest prior to trial. Peter McMichael, David
McMichael, and Michael Hudak all died prior to trial.
3 The verdict slip contained separate lines for the jury to record the amount of economic
and non-economic damages; the jury indicated “$0” on both lines.
[J-25AB-2020] - 3
Unlike the evidence presented in [Kiser v. Schulte, 648 A.2d
1 (Pa. 1994)], in which the economic expert provided a
specific range of value of the services provided by the
decedent, [Wife’s] expert in this case, Dr. William Houston
Reed, did not present any testimony on the value of any
services provided by [Decedent]. Moreover, there was
absolutely no testimony with regard to the amounts that
[Decedent] contributed to his family during his lifetime. The
only thing that Dr. Reed testified to was a reduction in the
amount of economic loss under the Survival Act for lost wages
based upon personal maintenance for [Decedent]
himself. . . .
The only testimony offered with regard to services
provided to the family came from [Wife], who testified that
[Decedent] performed repairs around the house such as
cutting grass and did other projects around the house such as
building a grape arbor for her on Mother’s Day. There was no
testimony whatsoever as to a value for these services, nor
was there any testimony as to the amount of costs associated
with these services or projects. In fact, there was nothing that
the jury had to accept, and the jury was free to reject this
testimony under the case law set forth above because it was
not definite. No one testified as to any economic contributions
that [Decedent] provided to his family.
Trial Court Opinion, 4/19/18, at 21-22.
Cognizant that a spouse may also recover wrongful death damages for non-
economic loss, which includes loss of companionship, comfort, society, guidance, solace,
and protection, as well as loss of consortium, see Spangler v. Helm’s New York-
Pittsburgh Motor Express, 153 A.2d 490, 492 (Pa. 1959), the trial court noted that,
although Wife testified “that she had a good marriage with [Decedent], which lasted from
1982 to the time of his death in 2012,” Wife “barely touched upon their actual relationship
and what they did in their time spent together during her testimony.” Trial Court Opinion,
4/19/18, at 23. Explaining that it found “no evidence of unfairness, mistake, partiality,
prejudice, corruption or the like that requires disregarding the jury’s rejection of the claim
for non-economic damages,” the court denied Wife’s motion for a new trial. The trial court
[J-25AB-2020] - 4
also denied P&J’s post-trial motions, and the parties cross-appealed to the Superior
Court.
In a unanimous unpublished memorandum opinion, the Superior Court affirmed in
part, reversed in part, and remanded for further proceedings. McMichael v. McMichael &
P&J Construction and Landscape Nursery LLC, 721 & 795 WDA 2018, 2019 WL 1613152
(Pa. Super. filed April 15, 2019). Of particular relevance herein, the Superior Court
reversed the trial court’s denial of a new trial on Wife’s wrongful death damages claim. In
so doing, the court first noted that Wife testified regarding Decedent’s “services to the
household, including repairs, servicing the furnace, mowing the lawn, cooking, and driving
Wife to work in inclement weather.” Id. at 27. Citing this Court’s opinion in Carroll v.
Avallone, 939 A.2d 872, 875 (Pa. 2007) (“if there is no argument or opposition on a
particular point, the jury may not be free to disregard such information”), the Superior
Court concluded that P&J “did not contest, through expert testimony, cross examination,
or argument, the services Decedent rendered to his household with regard to wrongful
death damages.” McMichael, 721 & 795 WDA 2018, at 30.
The Superior Court acknowledged that P&J “vaguely reference[d] wrongful death
damages” in its closing argument, wherein P&J’s counsel stated:
Another item of damages is the support that [Decedent] was
providing to the family, and so, I don’t recall hearing any
testimony about what that was. We know [Wife] works full-
time, and I don’t believe there was any indication there were
any children living in the home, so you’ll have to determine
what, if any, amount that was, whether there was any
additional support to the family, and the Judge instructs on all
[of that], you don’t have to rely on me.
Id. at 29-30 (quoting N.T. Trial, 7/17/17 (Excerpt II), at 7). The court opined, however,
that “counsel’s failure to recall what evidence Wife presented does not amount to a
challenge to the underlying facts supporting Wife’s wrongful death damages.” Id. at 30.
[J-25AB-2020] - 5
The Superior Court ultimately concluded:
While Wife did not present specific dollar amounts for the
services Decedent rendered to the household, it
unquestionably amounted to more than zero dollars. Instead
of attempting to estimate the amount of these services, the
jury completely disregarded the evidence presented on the
question of wrongful death damages and settled on an
inadequate amount of zero dollars. Therefore, we conclude
that the trial court abused its discretion in denying Wife’s
motion for a new trial as to wrongful death damages.
Id.
P&J filed a petition for allowance of appeal with this Court, and we granted review
to consider whether the trial court abused its discretion in denying Wife’s motion for a new
trial based on the jury’s award of zero dollars in wrongful death damages, as held by the
Superior Court.
Prior to addressing the arguments of the parties, we briefly review the distinction
between survival damages and wrongful death damages. A survival action under 42
Pa.C.S. § 8302 is brought by the administrator or executor of a decedent’s estate in order
to recover damages for the decedent’s pain and suffering, the loss of gross earning power
from the time of injury to death, and the loss of earning power, less personal maintenance
expenses, for the estimated working life span of the decedent. Kiser, 648 A.2d at 4. By
contrast, a wrongful deathful action pursuant to 42 Pa.C.S. § 8301 is designed to
compensate the spouse, children, and parents of the deceased for the pecuniary loss
they have sustained as a result of the decedent’s death, and damages may include the
present value of services that would have been rendered to the family had the decedent
lived, as well as funeral and medical expenses. Id. In each case, the burden of proving
damages is on the plaintiff, and the amount and items of pecuniary damage cannot be
presumed but must be proven by facts and, where possible, with certainty. See Vrabel
[J-25AB-2020] - 6
v. Com., Dep’t of Transp., 844 A.2d 595, 601 (Pa. Cmwlth. 2004), abrogation in part
recognized by Ewing v. Potkul, 171 A.3d 10 (Pa. Cmwlth. 2017).4
Turning to the arguments of the parties, P&J maintains that, where the evidence
in a wrongful death action is comprised of the testimony of the party seeking damages,
that testimony must be sufficiently specific to permit the jury to assign a value to the lost
services without engaging in speculation. P&J Brief at 25-26 (citing Vrabel). P&J
contends that the Superior Court erred in reversing the trial court’s denial of Wife’s motion
for a new trial on wrongful death damages because Wife failed to present testimony or
evidence regarding (1) medical, funeral, or estate administration expenses that were
incurred or paid; (2) the amount Decedent contributed for the family’s food, shelter, or
other necessities; or (3) the amount Decedent spent on gifts or entertainment for the
family. Id. at 10. P&J also highlights that the joint tax returns of Wife and Decedent,
which were admitted into evidence, demonstrated that Wife was the main wage earner.
Id.
Acknowledging that Wife “testified briefly, and relatively vaguely,” regarding the
services Decedent allegedly provided, “such as planting trees and shrubs, home repairs,
yard work, cooking, and driving [Wife] to work in the winter if the roads were bad,” P&J
avers that Wife did not submit any testimony or evidence to establish the value of those
services. Id. at 11. P&J points out that the trial court itself “took note” of the “lack of
evidentiary support” for Wife’s wrongful death claim, as revealed by the court’s statement
during an in-chambers conference immediately prior to closing arguments that the jury
“may not find any evidence that [Decedent] supported his family, and therefore that could
4 In Ewing, the Commonwealth Court noted that this Court’s decision in Department of
Public Welfare v. Schultz, 855 A.2d 753 (Pa. 2004), abrogated Vrabel to the extent it
allowed anyone other than a decedent’s spouse to recover damages for loss of
consortium. Ewing, 171 A.3d at 17.
[J-25AB-2020] - 7
be zero, or it could be any number in between. There wasn’t really a lot of evidence.” Id.
at 12-13 (quoting Transcript of In-Chambers Conference, 7/17/17 (R.R. at 136a)). With
regard to Wife’s proffered evidence of non-economic damages, P&J characterizes it as
“scant,” and limited almost entirely to Wife’s oral testimony. Id. at 11.
As to the Superior Court’s finding that P&J did not challenge the underlying facts
supporting Wife’s claim for wrongful death damages, and, thus, that her evidence of
damages was uncontroverted and could not be disregarded by the jury, P&J responds
that it “challenged her veracity on a very material point and challenged her credibility
globally.” Id. at 30-31. Specifically, P&J recounts that Wife made a statement at trial that,
in the immediate aftermath of her son David’s death, Peter McMichael told her that she
had just lost her “star witness” in the case, as David had been present at the time of the
accident. P&J further notes that Wife’s counsel repeatedly argued that Peter McMichael’s
comment was “highly inculpatory.” Id. at 32. P&J emphasizes, however, that, during her
cross-examination, Wife admitted that Peter McMichael never made this statement to her.
Rather, she claimed that Peter McMichael made the alleged remark to someone else,
who then told her about it, although she could not recall the identity of that person. Id.
P&J suggests that, particularly in light of the fact that the trial court, without objection,
gave the jury a falsus in uno, falsus in omnibus charge,5 it was the jury’s prerogative to
disbelieve some or all of Wife’s testimony.
In light of the above, P&J maintains that the trial court properly refused to grant
Wife a new trial on wrongful death damages, and that the Superior Court erred by
usurping the trial court’s role in determining whether the jury’s verdict shocked the
5 Falsus in uno, falsus in omnibus, which translates to “false in one, false in all,” is a legal
precept which provides that, where a witness testifies falsely to any material fact, the jury
may, but is not required to, disregard all the witness’s testimony. Commonwealth v.
Ieradi, 64 A. 889 (Pa. 1906).
[J-25AB-2020] - 8
conscience of the court. P&J further suggests that the Superior Court’s decision, in effect,
created a per se rule requiring an award of wrongful death damages in nearly every case,
regardless of the evidence proffered at trial, which is contrary to the well-established
principle that damages are never presumed, and must be proven by competent evidence.
Id. at 25 (citing Maxwell v. Schaefer, 112 A.2d 69 (Pa. 1955); Vrabel).
In response, Wife first disputes P&J’s assertion that the Superior Court has, in
effect, created a per se rule requiring wrongful death damages in all cases. Wife suggests
that the Superior Court’s holding was limited to the facts of the instant case, and that the
court simply concluded “that awarding zero dollars was a clear indication that this jury
completely disregarded the uncontroverted testimony and evidence presented in this
case.” Wife’s Brief at 20 (emphasis original).
Wife further contends that the Superior Court’s holding does not require a jury to
engage in “improper speculation” to assign values to the lost services of Decedent, and,
therefore, that its decision does not contravene Vrabel. Id. at 21. Arguing that “damages
are only considered speculative if there is uncertainty regarding the existence of the
damages rather than the ability to precisely calculate the value or amount of the
damages,” Wife maintains that there was “ample evidence” that Decedent provided both
economic and non-economic contributions to Wife and the household, and that the
damages were “readily identifiable” to the jury. Id. at 22-23 (emphasis original). Wife
argues that, under Pennsylvania law, “a claim for damages may be sustained if the
amount may be fairly estimated from the evidence.” Id. at 23 (citing, inter alia, Carroll by
Burbank v. Phila. Hous. Auth., 650 A.2d at 1097, 1100 (Pa. Cmwlth. 1994)). Suggesting
that the value of the services Decedent contributed to the household, such as cooking,
yard work, and making home repairs, “are most certainly matters of common knowledge
[J-25AB-2020] - 9
easily evaluated by any lay person,” she avers that expert testimony as to the value of
those services was neither necessary, nor proper. Id. at 24.
Finally, Wife contends that, even if this Court were to agree with the trial court’s
determination that she failed to present sufficient evidence to support an award for lost
services, the Superior Court properly determined that the jury’s award of zero dollars in
damages could not stand because it is “inconceivable that any jury could find, absent
prejudice, passion, corruption, confusion or mistake,” that the 30-year marriage of Wife
and Decedent was “worth nothing.” Id. at 26 (emphasis original). In this regard, Wife
suggests that her testimony about her relationship was “compelling,” and asserts that it
is the quality, not the quantity, of the evidence that controls. Id. at 27. She reiterates her
trial testimony that she and Decedent enjoyed spending leisure time together and doing
projects around the house; that they planned to build a log cabin where they would live
when they retired; and that she is no longer treated to breakfast every morning or
spontaneous date nights. Id. at 27-28. She further argues that, because the foregoing
testimony was not disputed or contradicted, under Carroll v. Avallone, the jury was not
free to disregard it, notwithstanding P&J’s challenge to her inconsistent testimony
regarding the comment allegedly made to her by Peter McMichael regarding her
deceased son. Id. at 28.
In reviewing an order granting a new trial, “our standard of review is limited to
determining whether the trial court abused its discretion or committed an error of law.”
Carroll v. Avallone, 939 A.2d at 874 (citation omitted). A new trial “should only be granted
where the jury’s verdict shocks one’s sense of justice because it is so contrary to the
evidence admitted at trial.” Id. Furthermore, it is the province of the jury to assess the
worth of all testimony presented, and the jury is free to believe all, some, or none of the
witness testimony presented at trial. Id. Nevertheless, “the jury’s verdict may be set aside
[J-25AB-2020] - 10
if it is the product of passion, prejudice, partiality, or corruption, or if it is clear the verdict
bears no reasonable relationship to the loss suffered by the plaintiff based on the
uncontroverted evidence presented.” Id.
We first consider the economic aspect of the jury’s verdict of zero dollars in
damages for wrongful death. It is undisputed that Wife did not present any evidence of
medical, funeral, or estate administration expenses. Thus, Wife’s potential recovery for
economic damages was limited to the loss of Decedent’s services. In this regard, Wife
offered her own testimony that Decedent performed home repairs, mowed the lawn, did
most of the cooking, and drove her to work when the weather was bad. Neither Wife, nor
her economic expert, however, testified to the estimated value of these contributions, or
the cost of hiring someone to perform these tasks.
As noted above, the burden of proving damages is on the plaintiff, and the amount
and items of pecuniary damages cannot be presumed, but must be proven by facts and,
where possible, with certainty. Vrabel, 844 A.2d at 601. The value of the contributions
that Decedent was alleged to have made to the household are of a type which courts
have held are quantifiable and capable of being proven to a jury. In Vrabel, for example,
a father filed an action against PennDOT following the death of his son, who was a
volunteer firefighter killed when he lost control of the vehicle he was driving to the scene
of an emergency. Vrabel alleged that PennDOT’s negligence in allowing water to
accumulate on the road caused the accident, and sought both survival and wrongful death
damages. The jury awarded Vrabel $160,000 in survival damages and $50,000 in
wrongful death damages, and PennDOT appealed.
The Commonwealth Court reversed the award of wrongful death damages,
concluding that Vrabel “did not prove his economic losses with sufficient specificity for the
jury to assign a dollar amount without speculating.” Id. at 599. The court noted that
[J-25AB-2020] - 11
Vrabel had testified at trial that his son helped Vrabel and his wife “with things that needed
to be done at home, including helping with groceries and in the yard; helped other
relatives and older people; and would have helped Vrabel and his wife as they got older.”
Id. at 601 (record citations omitted). The court explained, however:
[L]acking was any testimony concerning the amount of
Vrabel’s loss for not having his son’s help around the house,
with groceries or in the yard. These are items that may be
quantified and, thus, were required to be quantified so the jury
did not engage in speculation as to their amount. . . . While
Vrabel was not required to quantify these amounts with
mathematical certainty, the testimony offered provided no
reasonable basis for the jury to calculate the pecuniary loss.
Id. The court observed, for example, that no testimony was offered as to the cost of hiring
someone to help Vrabel in the yard and to do work around the house. Id.6
This Court’s decision in Kiser also was grounded on the principle that the amount
of damages must bear a rational relationship to proven economic damages. In that case,
we determined that the Superior Court properly remanded the case for a new trial
6 Justice Mundy, in her Concurring and Dissenting Opinion, contends that Wife’s
“uncontroverted testimony” was sufficient to establish “Appellants’ negligence caused
pecuniary loss to Wife, i.e. to prove damages in Wife’s wrongful death action,” and
“provided a ‘reasonably fair basis’ for the jury to assign a value to those services.”
Concurring and Dissenting Opinion (Mundy, J.) at 2-3. As discussed above, we recognize
that Wife testified that Decedent contributed to the household in a number of ways.
However, Wife failed to offer any evidence as to the economic value of those
contributions, which she was required to do under the law. See Vrabel, supra; Kiser,
supra. While Justice Mundy would limit Vrabel to its specific facts − a parent seeking
wrongful death damages for the loss of services of his adult son − she provides no
rationale for such a limited construction. With regard to Justice Mundy’s quote from
Rowles v. Evanuik, 38 A.2d 255 (Pa. 1944), to support her position that, because Wife
proved that she suffered pecuniary loss in the form of her loss of Decedent’s services,
“the jury was required to assign a value to those damages,” and Wife’s failure to do so
did not support an award of zero damages, Concurring and Dissenting Opinion at 6, we
note that, unlike Wife with respect to her asserted wrongful death damages, the plaintiff
in Rowles did, in fact, introduce evidence, including the decedent’s age, occupation, past
and current wages, and health, by which the jury was able to calculate, without simply
speculating, the amount of damages.
[J-25AB-2020] - 12
because the jury’s total award of $25,000 for both wrongful death damages and survival
damages was “clearly inadequate,” in light of the plaintiffs’ expert testimony regarding
their economic losses and the value of the loss of services following the death of their 18-
year-old daughter. Kiser, 648 A.2d at 4. The plaintiffs’ expert in Kiser had testified that
the net economic loss to their daughter’s estate pursuant to their survival action was
between $232,400 and $756,081, and he valued her lost services in their wrongful death
action as $11,862 to $18,980. Recognizing that “a jury is free to believe or disbelieve
opinion evidence presented by an expert witness,” id. at 5, we nonetheless observed:
[T]he uncontroverted testimony of the [Plaintiffs’] expert
established that the net economic loss resulting from Ms.
Kiser’s death ranged from $232,400 to $756,081.43. The
defense did not present any other experts or any other
evidence to the contrary on the question of damages. When
faced with such uncontroverted evidence, a jury’s verdict must
bear a reasonable resemblance to the proven damages.
Id. at 6 (emphasis added, footnote omitted). We concluded that the jury’s award did not
bear “any rational relationship to the uncontroverted testimony presented” by the plaintiffs’
expert. Id.
Herein, although Wife testified that Decedent contributed to the household in
several ways, she did not offer any evidence as to the economic value of those
contributions, and the jury thus would have been forced to engage in speculation
regarding that value.7 Further, as noted by P&J in its brief, during an in-chambers
7 Wife cites Carroll by Burbank in support of her argument that the “indefiniteness” of the
amount of damages does not preclude relief, and an award may be sustained if the
amount of damages can be fairly estimated from the evidence. In that case, a mother
filed an action against a public housing authority for medical costs arising from
maintenance and support of her child, who was severely and permanently injured as a
result of a fall down an elevator shaft. The mother claimed that she might become liable
for medical bills not covered by prior settlement agreements reached on behalf of the
child. The trial court granted summary judgment in favor of the housing authority,
reasoning that the mother’s claim was based on several contingencies, including, inter
[J-25AB-2020] - 13
conference prior to closing argument, the trial judge observed that there “wasn’t really a
lot of evidence,” and he suggested that the jury “may not find any evidence that
[Decedent] supported his family, and therefore [the wrongful death damages] could be
zero.” Transcript of In-Chambers Conference, 7/17/17 (R.R. at 136a). Indeed, during his
closing argument, Wife’s counsel also recognized the lack of evidence to support an
award of economic wrongful death damages:
Now, on the verdict slip there’s going to be three
separate . . . lines, and the first category is going to be the
loss of support to his family. . . .
And in this particular category, you heard Tina
McMichael was working at that time, and, as a result, she was
able to support herself on her own wages to some extent. She
was making money herself, and so Seth McMichael’s support
to her would have been relatively small in comparison to the
other damages in this case.
And so on line number one I would say that a fair and
reasonable amount would be a relatively small amount
compared to the other damages I’m about to talk about.
N.T. Trial, 7/17/17, at 31-32 (R.R. at 194a-195a).
alia, the insufficiency of the settlements, thus rendering the mother’s claim remote and
speculative. The Commonwealth Court reversed, noting that the question before it was
“not whether Burbank is entitled to recovery, but whether the trial court erred in denying
her the opportunity to present her claim to a trier of fact.” 650 A.2d at 1100. It further
explained that “there is no question as to the fact of damages,” but that the uncertainty
concerned “whether the amount provided in the settlement agreements for [Child’s]
maintenance and support will be sufficient.” Id. Thus, while Carroll by Burbank
recognized that a plaintiff must be afforded the opportunity to prove her claim for future
damages, and that “summary judgment is improperly granted solely on the basis that the
amount of damages is indefinite,” id., it does not, in our view, support Wife’s position that
a jury may speculate as to the value of lost services when a plaintiff offers into evidence
a description of the alleged lost services, but fails to offer evidence of the economic value
of those services.
[J-25AB-2020] - 14
As the trial court predicted that, based on the paucity of evidence, the jury might
not award any wrongful death damages, and Wife’s own counsel suggested that the
amount of Wife’s economic damages was “relatively small,” it is unsurprising that the
jury’s award of zero dollars in that regard did not shock the court’s sense of justice. See
Carroll v. Avallone, 939 A.2d at 874. Thus, in light of the lack of evidence presented at
trial regarding the value of lost services resulting from Decedent’s death, we find there
was no basis for the Superior Court’s conclusion that the trial court abused its discretion
in denying Wife’s motion for a new trial based on the jury’s award of zero dollars in
economic damages.8
Wife maintains, however, that even if the trial court properly concluded that the
jury’s verdict of zero dollars in economic damages was supported by the record, the
Superior Court properly found that the trial court abused its discretion in denying her
motion for a new trial because the jury’s award of zero dollars in non-economic damages
for the loss of “a husband, friend and partner of 30 years” could only have been the result
of prejudice, passion, corruption, confusion, or mistake. Wife’s Brief at 27. Responding
to P&J’s observation that her testimony regarding her relationship with Decedent
comprised only 10 pages of the trial transcript, Wife avers that it is “the quality, not the
quantity, of evidence that controls,” and she reiterates that their marriage was “happy,”
that they had three children, and that they enjoyed spending time together. Id.
8 We do not suggest that a plaintiff always must present expert testimony to establish the
value of lost services in a wrongful death action. The jury, however, must be given some
guidance in assessing the value of those lost services. See, e.g., Vrabel, 844 A.2d at
601 (where plaintiff failed to offer any testimony regarding the cost to hire someone to
perform the work the deceased would have performed had he been alive, plaintiff failed
prove economic losses with sufficient specificity to allow the jury to assign a dollar amount
without engaging in speculation). As discussed above, Wife presented no evidence
whatsoever as to the value of lost services, and, thus, the jury would have been required
to engage in speculation in assigning a value thereto.
[J-25AB-2020] - 15
Initially, we note that the Superior Court did not distinguish between economic and
non-economic wrongful death damages in its opinion, nor did it address whether Wife
was entitled to non-economic wrongful death damages. Rather, in concluding that the
jury “completely disregarded the evidence presented on the question of wrongful death
damages and settled on an inadequate amount of zero dollars,” the Superior Court
focused solely on the concept of economic damages. McMichael, 721 & 795 WDA 2018,
at 30 (“While Wife did not present specific dollar amounts for the services Decedent
rendered to the household, it unquestionably amounted to more than zero dollars.”
(emphasis added)). Although, as discussed above, we find that Wife failed to offer
sufficient evidence to support her claim for economic wrongful death damages, and thus
conclude that the trial court did not err in denying her motion for a new trial on that basis,
we cannot say the same with respect to the jury’s award of zero dollars for non-economic
wrongful death damages.
It bears repeating that the duty of assessing damages, whether economic or non-
economic, is within the province of the jury, and, as trier of fact, the jury weighs the
veracity and credibility of the witnesses and their testimony. As a result, a verdict may
not be disturbed simply
because the evidence is conflicting or because the court
would have reached a different conclusion . . .; rather, the
award of a new trial based upon inadequacy of a verdict is
proper only where the jury’s finding appears to have resulted
from “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.”
K.H. v. J.R., 826 A.2d 863, 875 (Pa. 2003) (quoting Kiser, 648 A.2d at 4).
In the case sub judice, we find that the amount of the verdict − zero dollars − with
respect to non-economic wrongful death damages bears no reasonable relation to the
[J-25AB-2020] - 16
proffered evidence of loss suffered by Wife. Wife testified that she and Decedent were
happily married for 30 years, and had three children together. N.T. Trial, 7/13/17, at 153
(R.R. at 97a). She testified that they enjoyed spending their leisure time together, often
working on projects around the house, such as planting trees and blueberry bushes. Id.
at 155 (R.R. at 99a). Wife testified that she and Decedent planned to build a log cabin
on a piece of property they owned, and intended to reside there. Id. at 161 (R.R. at 105a).
Wife also testified that Decedent fixed her breakfast every morning, and would surprise
her with spontaneous “date nights.” Id. at 162 (R.R. at 106a). As this Court has
recognized, things “such as companionship, comfort, society, guidance, solace, and
protection which go into the vase of family happiness [ ] are the things for which a
wrongdoer must pay when he shatters the vase.” Spangler, 153 A.2d at 492. Further, in
contrast to the proof required for economic damages, “[t]he fact that there is no
mathematical formula whereby compassionately bestowed benefits can be converted into
a precise number of bank notes does not mean that the tortfeasor will be excused from
making suitable reimbursement for their loss.” Id.
P&J maintains that it was within the jury’s prerogative to discount all of Wife’s
testimony based on her inconsistent statements regarding the comment allegedly made
to her by Peter McMichael regarding her deceased son, see supra page 8, statements
which the Superior Court acknowledged undercut Wife’s credibility.9 Nevertheless, we
9 The Superior Court acknowledged this when it addressed P&J’s claim that the trial court
erred in denying its motion for a new trial on the grounds that Wife’s counsel misled both
P&J and the trial court by stating, at a hearing on P&J’s motion in limine, that, following
the death of David McMichael, Peter McMichael allegedly told Wife that she had lost her
star witness. The Superior Court agreed with the trial court’s determination that P&J had
waived its hearsay challenge to the trial court’s admission of the statement, and further
observed that P&J sought to raise new theories of relief on appeal. The Superior Court
further concluded that, even if the issue had not been waived, P&J was not prejudiced by
the statement because “[c]ounsel’s effective cross examination undercut Wife’s credibility
regarding the statement.” McMichael, 721 & 795 WDA 2018, at 23.
[J-25AB-2020] - 17
cannot agree that P&J’s challenge to Wife’s “credibility globally,” P&J Brief at 31, negated
Wife’s otherwise uncontroverted testimony regarding her relationship with Decedent, so
as to support an award of zero dollars in non-economic wrongful death damages for a
widow who lost her husband of 30 years. In finding “no evidence of unfairness, mistake,
partiality, prejudice, corruption or the like that requires disregarding the jury’s rejection of
the claim for non-economic damages,” Trial Court Opinion, 4/19/18, at 23, the trial court
noted that, during Wife’s testimony, she “barely touched upon” her actual relationship with
Decedent, and what they did in the time they spent together. Id. We acknowledge that
Wife might have presented more extensive or detailed testimony regarding her
relationship with Decedent. However, based on the testimony recounted above, and
bearing in mind that, in contrast to economic damages, non-economic damages are not
subject to ready proof, see Spangler, 153 A.2d at 492, we conclude that the jury’s award
of zero dollars in non-economic wrongful death damages bears no reasonable relation to
the loss suffered by Wife, and, therefore, that it shocks one’s sense of justice. Thus, we
hold that the trial court abused its discretion in denying Wife’s motion for a new trial based
on the jury’s award of zero dollars in non-economic wrongful death damages.
Accordingly, for the reasons set forth above, we affirm the Superior Court’s order
in part and reverse in part, and remand this matter to that court, for remand to the trial
court, for a new trial on damages for wrongful death, limited to non-economic damages.
Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer and Wecht join the opinion.
Justice Mundy files a concurring and dissenting opinion.
Justice Dougherty files a dissenting opinion.
Justice Donohue did not participate in the consideration or decision of this case.
[J-25AB-2020] - 18