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

[J-25A-2020 and J-25B-2020] [MO:Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
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 :
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: NOVEMBER 18, 2020
In this case, the jury found Appellants were negligent and their negligence was a
factual cause of harm to Decedent. Verdict Slip, 7/17/17, at 1 (R.R. at 247). Nonetheless,
the jury proceeded to award Wife zero dollars in economic and non-economic wrongful
death damages. Id. at 3 (R.R. at 249). Because the jury’s award had “no reasonable
relationship to the loss suffered by the plaintiff based on the uncontroverted evidence
presented,” Carroll v. Avallone, 939 A.2d 872, 874 (Pa. 2007), I join the Majority’s decision
to affirm the Superior Court’s decision remanding for a new trial on non-economic
damages. However, I dissent from the Majority’s holding to the extent it does not also
remand for a new trial on economic damages.
In awarding a new trial on non-economic damages, the Majority explains “we
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.” Maj. Op. at 17. Similarly, I conclude that Wife’s
uncontroverted testimony of the services Decedent provided to their household does not
support an award of zero dollars in economic wrongful death damages.
Wife’s uncontroverted testimony was that Decedent performed household repairs,
mowed the lawn, landscaped, cooked 80% of their meals, and drove Wife to work in
inclement weather. N.T., 7/13/17, at 155-57 (R.R. at 99a-101a). As examples of
Decedent’s contributions to their household, Wife testified that after Decedent’s death she
had to hire help to repair her hot water tank and her furnace, which were ordinarily repairs
Decedent would have performed. Id. at 156-57 (R.R. at 100a-101a). Additionally, Wife
stated she had to take down a grape arbor that Decedent had built for her as a Mother’s
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Day gift because she could not maintain it. Id. at 156 (R.R. at 100a). This uncontroverted
evidence was sufficient to establish Appellants’ negligence caused pecuniary loss to Wife,
i.e., to prove damages in Wife’s wrongful death action. See Carroll, 939 A.2d at 875 (“[i]f
there is no argument or opposition on a particular point, the jury may not be free to
disregard such information”); Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995) (explaining
“a jury is entitled to reject any and all evidence up until the point at which the verdict is so
disproportionate to the uncontested evidence as to defy common sense and logic,” which
was the holding of Kiser v. Schulte, 648 A.2d 1 (Pa. 1994)); Gaydos v. Domabyl, 152 A.
549 (Pa. 1930) (explaining “[t]he reasonable expectation of pecuniary advantage to one
standing in the family relation may be shown in many ways, but more frequently through
services, food, clothing, education, entertainment, and gifts bestowed . . . [and] rendered
with a frequency that begets an anticipation of continuance”). Further, this evidence
provided a “reasonably fair basis” for the jury to assign a value to those services.
Kaczkowski v. Bolubasz, 421 A.2d 1027, 1030 (Pa. 1980) (quotation marks and citation
omitted). Accordingly, because Wife presented uncontroverted evidence establishing
damages, the jury’s award of zero damages did not have any reasonable relationship to
Wife’s injury. See Carroll, 939 A.2d 874; Neison, 653 A.2d at 637.
As support for its conclusion that the award of zero damages was not shocking
due to “the paucity of evidence,” the Majority quotes both Wife’s counsel’s closing
argument and the trial court’s comments in an in-chambers conference. Maj. Op. at 13-
14. To the extent the comments on the evidence, as opposed to the evidence itself, are
relevant, those comments do not support the Majority’s conclusion. In the portion of
Wife’s counsel’s closing argument quoted by the Majority, Wife’s counsel was referring
exclusively to the monetary support Decedent would have contributed to Wife, which
counsel characterized as “a relatively small amount compared to the other damages I’m
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about to talk about.”1 N.T., 7/17/17, at 31-32 (R.R. at 194a-195a). The Majority does not
mention that Wife’s counsel then spoke about Wife’s non-economic damages, or loss of
consortium, as including the loss of Decedent’s household services:
[W]hat I can tell you is that those lost wages I mentioned a
moment ago . . . that’s just the tip of the iceberg, the part of
the iceberg that just juts above the top of the water and then
below the water line, the rest of that iceberg, that part, that is
the life damages in this case.
Now, Tina’s entitled to be compensated for the loss of
Seth’s household services, society, comfort, and affection
over the last four-plus years and into the future, past and
future.
And you heard that Seth did a great amount around the
house, that he was good at fixing things and took care of the
lawn, and that’s all fine, but I think the most telling example
was this is a woman who works six days a week and takes all
the overtime that she can, but when her furnace broke, her
husband Seth wasn’t there to fix it, and she couldn’t afford a
new one. So in the winter time she has a little space heater
in her home and she walks around in a winter coat. That’s the
loss that Seth could have helped her with.
N.T., 7/17/17, at 34-35 (R.R. at 197a-198a).2 Thus, Wife’s counsel argued that the loss
of Decedent’s household services was a component of what he viewed as the largest
1 Reading this argument in the context of the in-chambers conference, Wife’s counsel
likely argued for a small amount of monetary support because the trial court intended to
mold the verdict by deducting any award of support from the lost earnings award in the
survival action. N.T., In-Chambers Conference, 7/17/17, at 5-6 (R.R. 132a-133a); see
also Tulewicz v. Southeastern Pa. Transp. Auth., 606 A.2d 427, 431 (Pa. 1992); Pezzulli
v. D’Ambrosia, 26 A.2d 659, 662 (Pa. 1942).
2 This conformed to the verdict slip’s characterization of economic damages as “support
to family” and non-economic damages as “loss of companionship, affection, assistance,
etc.” Verdict Slip, 7/17/17, at 3 (R.R. at 249a); see also N.T., Jury Instructions, 7/17/17,
at 53-54 (stating economic loss is “the amount of money that [Decedent] would have
contributed to his family for support” and noneconomic loss is “the amount of money that
will fairly and adequately compensate [] for the loss of companionship, cooperation,
affection, and assistance . . . . This is an area that has no economic figure given to you”).
But see Spangler v. Helm’s N.Y.-Pittsburgh Motor Exp., 153 A.2d 490, 491-92 (Pa. 1959)
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 4
category of damages, even more substantial than the lost wages in the survival action.
Likewise, the trial court’s comments in the in-chambers conference were limited to the
financial support Decedent provided Wife from his wages, not the household services he
provided: “[the jury] may not find any evidence that he supported his family, and therefore
that could be zero, or it could be any number in between. There wasn’t really a lot of
evidence, but the charge says it doesn’t have to be a mathematical certainty.” N.T., In-
Chambers Conference, 7/17/17, at 9 (R.R. at 136a). Neither Wife’s counsel’s closing
argument nor the trial court’s remarks in the in-chambers conference support the
Majority’s reading of them as minimizing the value of the loss of Decedent’s household
services.
Further, in holding that the jury was not permitted to “engage in speculation”
regarding the value of the loss of Decedent’s household services because Wife did not
quantify their economic value, the Majority adopts the Commonwealth Court’s rationale
in Vrabel v. Commonwealth, 844 A.2d 595 (Pa. Cmwlth. 2004). Maj. Op. at 13. Vrabel,
however, involved a parent seeking wrongful death damages for the loss of services of
his adult son. Id. at 597. It should remain limited to those facts. As this Court recognized
in Department of Public Welfare v. Schultz, 855 A.2d 753 (Pa. 2004), a parent’s claim for
the wrongful death of a child cannot include a claim for non-pecuniary losses (loss of
consortium), as it is different from a spousal claim. Id. at 755. As spousal wrongful death
claims are thus different in kind from the wrongful death claim of a parent arising out of
an adult child’s death, I would not expand Vrabel’s requirement to quantify pecuniary
losses to spousal wrongful death claims.
(stating pecuniary losses include the value of the decedent’s services, including
household work).
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 5
Additionally, the three cases the Vrabel Court cited to justify its rule that a wrongful
death plaintiff must prove the amount of the loss involved more readily quantifiable
damages than those involved in the loss of a spouse’s services. See Kaczkowski, 421
A.2d at 1034 (authorizing the computation of lost future earnings to include inflation and
productivity); Aiken Indus., Inc. v. Estate of Wilson, 383 A.2d 808, 812-13 (Pa. 1978)
(stating that the exact amount of breach of contract damages are generally difficult to
prove, but the net profit percentage is able to be determined with some specificity);
Gordon v. Trovato, 338 A.2d 653, 657 (Pa. Super. 1975) (holding a plaintiff must prove
lost wages with specific evidence).
As this Court has recognized,
It is frequently impossible to prove by direct evidence the
actual amount in money contributed by a husband for the
benefit of his wife and family. When there is testimony as to
the age of the deceased, the expectancy of life, his
occupation, the wages he received at and before the time of
accident, the condition of his health, his habits of life as to
industry, and that deceased was living with and keeping his
wife and children, there is sufficient [evidence] on which a jury
can properly find compensatory damages.
Rowles v. Evanuik, 38 A.2d 255, 258 (Pa. 1944).
I would apply Rowles to the loss of a spouse’s services in spousal wrongful death
actions. Here, Wife proved she suffered pecuniary loss in the form of the loss of
decedent’s services sufficiently through uncontroverted evidence, and the jury was
required to assign a value to those damages. That Wife did not attempt to reduce to a
dollar amount the value of her loss of Decedent’s services does not support an award of
zero damages. The “[d]amages for wrongful death are the value of decedent’s life to the
family.” Slaseman v. Myers, 455 A.2d 1213, 1218 (Pa. Super. 1983). Here, the jury’s
verdict that Decedent’s life had no economic value to Wife bears no reasonable
relationship to the uncontroverted evidence. See Carroll, 939 A.2d at 874; Neison, 653
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 6
A.2d at 637; see also N.T., Jury Instructions, 7/17/17, at 56 (R.R. at 235a) (stating the life
expectancy of all persons of Decedent’s age was an additional 20.5 years according to
the United States Department of Health and Human Services). At a minimum, Wife was
entitled to nominal damages on these facts. Accord McMichael v. McMichael, 2019 WL
1613152, at *13 (concluding “[w]hile Wife did not present specific dollar amounts for the
services Decedent rendered to the household, it unquestionably amounted to more than
zero dollars”).3 Accordingly, I would remand for a new trial on both economic and non-
economic damages. See Rice v. Erie R.R. Co., 114 A. 640, 641-42 (Pa. 1921) (awarding
a new trial for a jury to assess at least nominal damages in wrongful death action where
the trial court did not permit the jury to award damages because the plaintiff did not
quantify the amount of pecuniary loss).
For these reasons, I dissent from the Majority’s holding that Wife is not entitled to
a new trial on the economic damages.
3 I disagree with the Majority that Wife was required to assign an “economic value” to
Decedent’s household services. See Maj. Op. at 12 n.6. In my view, the uncontroverted
evidence of the household services Decedent performed, and would have continued to
perform absent Appellants’ negligence, coupled with Decedent’s life expectancy of an
additional 20.5 years provided the jury with a reasonably fair basis to award damages.
This is analogous to the wife-plaintiff in Rowles, who did not quantify her husband-
decedent’s monetary support with a dollar figure but provided other evidence upon which
this Court found the jury could assign damages. See Rowles, 38 A.2d at 258.
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