E.J. Ewing v. B.D. Potkul and PennDOT ~ Appeal of: PennDOT

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward J. Ewing and Mark E. :
Zooner, Sr., and Tiffany Sawyers, :
Co-Administrators of the Estate :
of Trudy Zooner, Deceased :
:
v. : No. 1471 C.D. 2016
: Argued: April 5, 2017
Brian D. Potkul; and Commonwealth :
of Pennsylvania, Department of :
Transportation :
:
Appeal of: Commonwealth of :
Pennsylvania, Department of :
Transportation :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT E. SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JULIA K. HEARTHWAY, Judge1
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION
BY PRESIDENT JUDGE LEAVITT FILED: September 27, 2017
The Pennsylvania Department of Transportation (PennDOT) appeals
an order of the Court of Common Pleas of Fayette County (trial court) that
sustained in part, and overruled in part, PennDOT’s preliminary objections to a
six-count complaint filed on behalf of the Estate of Trudy J. Zooner (Estate).2 At
1
This case was decided before Judge Hearthway’s term ended on September 1, 2017.
2
The administrators of the Estate of Trudy J. Zooner are Mark E. Zooner, husband of Decedent,
and Tiffany Sawyers, daughter of Decedent. The complaint, which has six counts, also includes
claims filed by Edward J. Ewing, driver of the vehicle in which Decedent died.
issue here is the trial court’s ruling upon PennDOT’s demurrer to Count VI of the
complaint, which asserted a claim under the statute commonly known as the
Wrongful Death Act3 on behalf of the husband, mother, and three adult daughters
of Trudy J. Zooner (Decedent). The trial court held that Decedent’s mother and
daughters could not seek “non-pecuniary” damages but could seek “pecuniary
damages” under the Wrongful Death Act for the loss of Decedent’s future services
and financial contributions. PennDOT argues that these so-called pecuniary
damages are barred by the provisions of the Judicial Code commonly known as the
Sovereign Immunity Act.4 We agree and reverse the trial court’s order holding
otherwise.
Background
On February 21, 2015, Decedent was a passenger in a vehicle driven
by Edward J. Ewing northerly on State Route 3014 in Fayette County. A vehicle
traveling south lost control on a patch of ice, crossed over the center line of Route
3014 and collided with the vehicle occupied by Ewing and Decedent. As a result
of the collision, Ewing sustained serious injuries, and Decedent was killed.
Decedent’s Estate brought, inter alia, a claim under the Wrongful Death Act
against PennDOT alleging Decedent’s death was caused by PennDOT’s negligence
in allowing water to accumulate and freeze on State Route 3014. Complaint,
Count VI, ¶¶52, 53. The Estate made identical claims of negligence by PennDOT
3
42 Pa. C.S. §8301.
4
42 Pa. C.S. §§8521-8528.
2
in a companion survival action5 filed on behalf of Decedent. Complaint, Count V,
¶¶45-50.
In its wrongful death claim, the Estate, on behalf of Decedent’s
husband, mother, and three daughters, sought damages for the following:
a. Lost income and financial support which would have
reasonably expected to have been received from the [] Decedent
during her lifetime;
b. Deprivation of the common society, companionship,
services, contributions, tutelage, and education due to the death
of the [] Decedent;
c. Entitlement to reasonable costs of any and all hospital,
medical, funeral, burial and estate administrative expenses and
other pecuniary losses due to the death of the [] Decedent;
d. All damages allowed under the Pennsylvania Wrongful
Death Statute/Law.
Complaint, ¶¶55, 56. The survival action filed by the Estate on behalf of
Decedent, sought damages for:
a. The permanent deprivation of the [Decedent’s] health, strength
and vitality;
b. The permanent deprivation of the [Decedent’s] earnings and
earning capacity; and
c. The mental and physical pain, suffering, inconvenience, shock,
emotional and mental anguish, distress, terror, fright,
anticipation of death and loss of life’s pleasures that [Decedent]
endured from the moment of injury until the time of her death.
Complaint, ¶50.
5
Section 8302 of the Judicial Code, 42 Pa. C.S. §8302, authorizes a decedent’s estate to bring
claims which the decedent could have brought had she lived.
3
PennDOT filed a preliminary objection in the nature of a demurrer to
the Estate’s wrongful death claim. PennDOT asserted that: (1) loss of consortium
damages are only recoverable by a decedent’s spouse and (2) the Sovereign
Immunity Act bars Decedent’s mother and daughters from recovering damages for
the loss of future income and financial support.
Before the trial court, the Estate conceded that loss of consortium
damages were available only to Decedent’s spouse. Accordingly, the trial court
sustained PennDOT’s preliminary objection to the loss of consortium claims of
Decedent’s mother and daughters. Trial Court Opinion, 7/12/2016, at 5. However,
the trial court held that the Sovereign Immunity Act did not bar Decedent’s mother
and daughters from recovering “pecuniary losses.” The trial court reasoned that
income and financial support constituted “earnings,” the loss of which can be
recovered under Section 8528(c)(1) of the Sovereign Immunity Act (relating to
loss of earnings and earning capacity). Accordingly, the trial court overruled
PennDOT’s demurrer to the Estate’s claims for “pecuniary damages.”
PennDOT petitioned the trial court to certify its order for immediate
appeal under Section 702(b) of the Judicial Code. 42 Pa. C.S. §702(b).6 The trial
6
Section 702(b) provides:
(b) Interlocutory appeals by permission.--When a court or other government unit,
in making an interlocutory order in a matter in which its final order would be
within the jurisdiction of an appellate court, shall be of the opinion that such order
involves a controlling question of law as to which there is substantial ground for
difference of opinion and that an immediate appeal from the order may materially
advance the ultimate termination of the matter, it shall so state in such order. The
appellate court may thereupon, in its discretion, permit an appeal to be taken from
such interlocutory order.
42 Pa. C.S. §702(b).
4
court granted PennDOT’s petition, and this Court allowed PennDOT’s appeal to
consider the following issue:
In a wrongful death action against a Commonwealth defendant,
may a parent or child recover damages for the value of the
services the decedent would have performed for them, and for
the financial support that the decedent would have provided
them?
Ewing v. Potkul (Pa. Cmwlth., No. 1471 C.D. 2016, filed October 3, 2016) (order
granting permission to appeal). On April 5, 2017, an en banc panel of this Court
heard argument by the parties. The matter is now ready for disposition.
Analysis
The Wrongful Death Act authorizes a spouse, child, or parent of a
decedent to recover tort damages from the party responsible for the wrongful death
of the decedent. 42 Pa. C.S. §8301.7 The Superior Court has explained the
purpose of the Act as follows:
7
The statute provides:
(a) General rule.--An action may be brought, under procedures prescribed by
general rules, to recover damages for the death of an individual caused by the
wrongful act or neglect or unlawful violence or negligence of another if no
recovery for the same damages claimed in the wrongful death action was obtained
by the injured individual during his lifetime and any prior actions for the same
injuries are consolidated with the wrongful death claim so as to avoid a duplicate
recovery.
(b) Beneficiaries.--Except as provided in subsection (d), the right of action created
by this section shall exist only for the benefit of the spouse, children or parents of
the deceased, whether or not citizens or residents of this Commonwealth or
elsewhere. The damages recovered shall be distributed to the beneficiaries in the
proportion they would take the personal estate of the decedent in the case of
intestacy and without liability to creditors of the deceased person under the
statutes of this Commonwealth.
(Footnote continued on the next page . . .)
5
The purpose of the Wrongful Death Statute ... is to compensate
the decedent’s survivors for the pecuniary losses they have
sustained as a result of the decedent’s death. This includes the
value of the services the victim would have rendered to his
family if he had lived. A wrongful death action does not
compensate the decedent; it compensates the survivors for
damages which they have sustained as a result of the
decedent’s death…. Under the wrongful death act the widow
or family is entitled, in addition to costs, to compensation for
the loss of the contributions decedent would have made for
such items as shelter, food, clothing, medical care, education,
entertainment, gifts and recreation.
Amato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015) (quoting Hatwood v.
Hospital of the University of Pennsylvania, 55 A.3d 1229, 1235 (Pa. Super. 2012))
(emphasis added). Here, the Estate alleges that PennDOT was responsible for the
wrongful death of Decedent by reason of its negligence.
Commonwealth agencies are generally shielded from tort liability
under the doctrine of sovereign immunity. 1 Pa. C.S. §2310.8 However, the
(continued . . .)
(c) Special damages.--In an action brought under subsection (a), the plaintiff shall
be entitled to recover, in addition to other damages, damages for reasonable
hospital, nursing, medical, funeral expenses and expenses of administration
necessitated by reason of injuries causing death.
(d) Action by personal representative.--If no person is eligible to recover damages
under subsection (b), the personal representative of the deceased may bring an
action to recover damages for reasonable hospital, nursing, medical, funeral
expenses and expenses of administration necessitated by reason of injuries
causing death.
42 Pa. C.S. §8301.
8
Section 2310 of the Pennsylvania Consolidates Statutes, added by the Act of September 28,
1978, P.L. 788, reaffirmed the doctrine of sovereign immunity:
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is
hereby declared to be the intent of the General Assembly that the Commonwealth,
and its officials and employees acting within the scope of their duties, shall
continue to enjoy sovereign immunity and official immunity and remain immune
(Footnote continued on the next page . . .)
6
General Assembly has waived sovereign immunity for eight specific types of tort
claims, such as those stemming from dangerous conditions of highways under the
jurisdiction of Commonwealth agencies. See 42 Pa. C.S. §8522(b)(4) (stating that
the Commonwealth may be liable for “[a] dangerous condition of…highways
under the jurisdiction of a Commonwealth agency…”). Even where sovereign
immunity to a tort claim is waived, damages for such torts are limited. The
relevant statutory provision states:
(a) General rule.--Actions for which damages are limited by
reference to this subchapter shall be limited as set forth in this
section.
(b) Amount recoverable.--Damages arising from the same
cause of action or transaction or occurrence or series of causes
of action or transactions or occurrences shall not exceed
$250,000 in favor of any plaintiff or $1,000,000 in the
aggregate.
(c) Types of damages recoverable.--Damages shall be
recoverable only for:
(1) Past and future loss of earnings and earning
capacity.
(2) Pain and suffering.
(3) Medical and dental expenses including the
reasonable value of reasonable and necessary
medical and dental services, prosthetic devices and
(continued . . .)
from suit except as the General Assembly shall specifically waive the immunity.
When the General Assembly specifically waives sovereign immunity, a claim
against the Commonwealth and its officials and employees shall be brought only
in such manner and in such courts and in such cases as directed by the provisions
of Title 42 (relating to judiciary and judicial procedure) or 62 (relating to
procurement) unless otherwise specifically authorized by statute.
1 Pa. C.S. §2310.
7
necessary ambulance, hospital, professional
nursing, and physical therapy expenses accrued
and anticipated in the diagnosis, care and recovery
of the claimant.
(4) Loss of consortium.
(5) Property losses, except that property losses
shall not be recoverable in claims brought pursuant
to section 8522(b)(5) (relating to potholes and
other dangerous conditions).
42 Pa. C.S. §8528.
In short, when considering a wrongful death claim brought against a
Commonwealth agency, we examine the claim through the lens of the Sovereign
Immunity Act. To recover against a Commonwealth agency, the damages sought
must be authorized by the Wrongful Death Act and by Section 8528(c) of the
Sovereign Immunity Act.
The same is true for a survival action brought against the
Commonwealth or its agencies. Section 8302 of the Judicial Code, commonly
known as the Survival Act, authorizes a decedent’s estate to assert claims that the
decedent could have asserted had he lived. Specifically, the Survival Act states
that “all causes of actions…real or personal, shall survive the death of the
plaintiff.” 42 Pa. C.S. §8302.9 A decedent’s claims are not extinguished by death
but, rather, may be recovered by his estate. The Supreme Court has described a
survival action as one
9
Section 8302 states, in full:
All causes of action or proceedings, real or personal, shall survive the death of the
plaintiff or of the defendant, or the death of one or more joint plaintiffs or
defendants.
42 Pa. C.S. §8302.
8
brought by the administrator of the decedent’s estate in order to
recover the loss to the estate of the decedent resulting from the
tort [and] [t]he measure of damages awarded...includ[ing] the
decedent’s pain and suffering, the loss of gross earning power
from the date of injury until death, and the loss of his earning
power - less personal maintenance expenses, from the time of
death through his estimated working life span.
Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994) (internal citations omitted). As with a
wrongful death claim, damages sought in a survival action against the
Commonwealth must be authorized by both the Survival Act and the Sovereign
Immunity Act.
With this statutory paradigm in mind, we turn to the merits of
PennDOT’s appeal. It contends that the loss of a decedent’s future services and
future financial support are not damages that can be recovered from a
Commonwealth agency. The Estate responds that case law precedent has
authorized parents and children to recover such damages in a wrongful death
action. We begin with a review of those cases.
In Huda v. Kirk, 551 A.2d 637 (Pa. Cmwlth. 1988), the decedent’s
husband and minor children brought wrongful death and survival actions against
the Commonwealth. The complaint sought the following damages: “pecuniary
losses, loss of value of services of the decedent, and the loss of comfort and society
of the decedent.” Id. at 638. This Court distinguished a wrongful death action,
which compensates survivors, from a survival action, which compensates the
decedent. We explained:
Included in plaintiffs’ complaint, inter alia, are a wrongful
death count and a survival count. The two actions allow two
separate and distinct recoveries. An action for wrongful death
compensates losses sustained by living individuals as a result of
the decedent’s death. A survival action, on the other hand, is
brought by the decedent’s personal representative seeking to
9
recover those damages the decedent could have recovered had
he or she survived; any recovery passes through the decedent’s
estate. The two actions most often overlap when lost earnings
and earning power are involved. In a survival action, the estate
is entitled to recover “the loss of earning power less personal
maintenance expenses from the time of decedent’s death
through decedent’s estimated working lifespan” Any amounts
the decedent would have contributed to the spouse and children
for their support are recoverable under the wrongful death
action; any amounts so awarded, however, must be subtracted
from the survival action recovery to avoid duplication of
damages.
Id. at 638-39 (internal citations omitted) (emphasis added).
We explained further that both wrongful death and survival actions
against the Commonwealth are limited by the Sovereign Immunity Act. Damages
for “past and future loss of earnings and earning capacity” are recoverable in the
survival action. 42 Pa. C.S. §8528(c)(1). “Loss of consortium” damages are
recoverable in the wrongful death action. 42 Pa. C.S. §8528(c)(4). We held that
the decedent’s husband and minor children could recover as consortium damages
the following:
the loss of the value of decedent’s services, the loss of the
decedent’s comfort and society and any contributions decedent
would have made to the plaintiffs from her income.
Huda, 551 A.2d at 639.
In Vrabel v. Department of Transportation, 844 A.2d 595 (Pa.
Cmwlth. 2004), the decedent’s parents brought a wrongful death action against
PennDOT seeking damages for the loss of their child’s services. A jury awarded
the parents $50,000. PennDOT appealed, arguing the damages should be stricken.
This Court agreed and reversed the award of damages. We acknowledged that
Huda held that damages for loss of a decedent’s services were recoverable against
10
the Commonwealth in a wrongful death action. However, the parents in Vrabel
had not presented evidence sufficient to establish the value of the decedent’s lost
services; this made the jury’s award speculative. Accordingly, the wrongful death
damage award to the decedent’s parents was stricken.
Thereafter, our Supreme Court decided Department of Public Welfare
v. Schultz, 855 A.2d 753 (Pa. 2004). In Schultz, the decedent’s mother instituted a
wrongful death action against a Commonwealth agency. The plaintiff sought
damages for the loss of her son’s comfort, society, love, affection, companionship,
support, and friendship. The Supreme Court held that the decedent’s mother was
barred by the Sovereign Immunity Act from recovering these damages. It
explained that:
[o]f the available damages recoverable under §8528(c),
[mother’s] claim for non-pecuniary losses could only fall into
the loss of consortium category. Damages for loss of
consortium are available only to spouses, and do not include a
parent’s loss of society and companionship of her child.
Because a parent cannot bring an action for loss of consortium
resulting from the death of her child, [mother] is barred under
the Sovereign Immunity Act from bringing an action against the
Commonwealth for non-pecuniary losses.
Id. at 755 (internal citations omitted) (emphasis added). Schultz abrogated Huda
and Vrabel to the extent these cases allowed anyone other than a decedent’s spouse
to recover damages for loss of consortium.
In the case sub judice, the trial court reasoned that the Supreme
Court’s decision in Schultz had a limited impact on Vrabel and Huda. The trial
court drew a line between pecuniary and non-pecuniary damages:
The Vrabel Court acknowledged precedent included “a claim
for ‘loss of the value of decedent’s services’ among damages
recoverable against the Commonwealth in a wrongful death
11
action.” See Huda [551 A.2d 637], abrogated on other grounds
by [Schultz, 855 A.2d 753]. Notably, Schultz did not address
claims for pecuniary losses, but rather overruled Huda on non-
pecuniary losses under 42 Pa. C.S. §8528(c)(4) relating to loss
of consortium. As such, the holdings of Vrabel and Huda are
still the law of this Commonwealth with respect to pecuniary
losses.
Trial Court Opinion, 7/12/2016, at 3-4. We agree with the trial court that Schultz
limited loss of consortium damages to a decedent’s spouse. We disagree, however,
with the trial court’s premise that Vrabel and Huda were largely unaffected by our
Supreme Court’s holding in Schultz.
Huda held that a spouse and minor children could recover for “loss of
the value of decedent’s services” and “contributions decedent would have made ...
from her income” as a type of loss of consortium damages under 42 Pa. C.S.
§8528(c)(4). Huda, 551 A.2d at 639. Thereafter, Vrabel, relying on Huda,
extended these damages to the parent of the decedent. In short, both parents and
children could recover for the loss of a decedent’s services and future financial
contributions as loss of consortium, or “non-pecuniary,” damages.10 However, this
analysis was discredited by the Supreme Court’s decision in Schultz.
Schultz held, without equivocation, that loss of consortium damages
cannot be recovered by a parent or child of the decedent. What has not been
answered is the question presented here: whether the loss of a decedent’s services
and financial contributions can be recovered as another “type of damages
recoverable” under Section 8528(c) of the Sovereign Immunity Act. 42 Pa. C.S.
§8528(c). The trial court answered the question by holding that the Estate
10
The term “non-pecuniary damages” is largely recognized as a synonym for loss of consortium
damages. The term “pecuniary damages,” however, has no such counterpart.
12
pled pecuniary damages that are recoverable under the
Wrongful Death Act and the Sovereign Immunity Act when
they sought compensation for “lost income and financial
support,” being a type of damage derivative from “past and
future loss of earnings and earning capacity” provided in the
Sovereign Immunity Act as to a Commonwealth entity.
Trial Court Opinion, 7/12/2016, at 4 (emphasis added). Stated otherwise, the trial
court held that the “pecuniary damages” sought by Decedent’s mother and children
constituted a form of “past and future earnings and earning capacity,” the recovery
of which is authorized by Section 8528(c). PennDOT asserts that the trial court
erred.
PennDOT argues that damages for a decedent’s lost earnings and
earning capacity are generally recoverable by the decedent’s estate in a survival
action. In its survival action count, the Estate sought damages for the “permanent
deprivation of [Decedent’s] earnings and earning capacity.” Complaint, ¶50(b).
PennDOT argues that Decedent’s mother and daughters may not recover similar
damages because they did not lose either “earnings” or “earning capacity” as a
result of Decedent’s death.
PennDOT reasons that because the Sovereign Immunity Act does not
define “earnings” and “earning capacity,” they must be construed according to
their common and approved usage. See 1 Pa. C.S. §1903(a) (stating “[w]ords and
phrases shall be construed according to rules of grammar and according to their
common and approved usage.”). PennDOT argues that it is a reach to describe the
services and support provided by a parent to a child as the child’s “earnings.”
Likewise, children who lose a parent are not considered to have lost “earning
capacity.” The same is true, PennDOT argues, for the value of services and
support rendered by a child to a parent.
13
“Earnings” are defined as “[r]evenue gained from labor or services,
from the investment of capital, or from assets.” BLACK’S LAW DICTIONARY 621
(10th ed. 2014). “Earning capacity” is defined as “a person’s ability or power to
earn money given the person’s talent, skills, training, and experience.” Id.
PennDOT argues that Decedent’s services and financial contributions were gifts,
and the loss of future gifts is not an item of damages that can be recovered against
a Commonwealth agency under the Sovereign Immunity Act.
The statute know commonly as the Political Subdivision Tort Claims
Act (Tort Claims Act), 42 Pa. C.S. §§8541-8542, governs actions against local
governments. It authorizes a list of damages that is more expansive than the list of
damages authorized against a Commonwealth agency. The Tort Claims Act states,
in relevant part, as follows:
(c) Types of losses recognized.--Damages shall be recoverable
only for:
(1) Past and future loss of earnings and earning
capacity.
(2) Pain and suffering in the following instances:
(i) death; or
(ii) only in cases of permanent loss
of a bodily function, permanent
disfigurement or permanent
dismemberment where the medical
and dental expenses referred to in
paragraph (3) are in excess of $1,500.
(3) Medical and dental expenses including the
reasonable value of reasonable and necessary
medical and dental services, prosthetic devices and
necessary ambulance, hospital, professional
nursing, and physical therapy expenses accrued
14
and anticipated in the diagnosis, care and recovery
of the claimant.
(4) Loss of consortium.
(5) Loss of support.
(6) Property losses.
42 Pa. C.S. §8553(c) (emphasis added).
PennDOT argues that the difference between the Tort Claims Act and
the Sovereign Immunity Act is telling. The Tort Claims Act specifically allows
recovery of damages for “loss of support” as well as for “loss of earnings and
earning capacity.” 42 Pa. C.S. §8553(c)(1), (5). Each type of damage award is
treated as separate, and each is authorized. If a decedent’s future services and
financial contributions constitute the “earnings” and “earning capacity” of the
recipient, there would have been no reason to list “loss of support” along with “loss
of earnings” as different types of damages recoverable under the Tort Claims Act.
42 Pa. C.S. §8553(c)(1), (5).
We agree with PennDOT. The services and financial support a
decedent would provide a child or parent do not constitute the “earnings” or the
“earning capacity” of the recipient. This loss is more accurately characterized as
the “loss of support.” The Legislature could have listed “loss of support” as one of
the “types of damages recoverable” from a Commonwealth agency, as it did in the
Tort Claims Act. But it did not do so. The only inference to be drawn is that the
omission was intentional. We hold that damages for loss of the value of a
decedent’s services and financial contributions are not damages authorized in
Section 8528(c)(1) of the Sovereign Immunity Act as “loss of earnings and earning
capacity.” 42 Pa. C.S. §8528(c)(1).
15
Alternatively, the Estate asserts the damages sought by Decedent’s
mother and daughters can be recovered as “property losses” under Section
8528(c)(5) of the Sovereign Immunity Act, 42 Pa. C.S. §8528(c)(5). The Estate
argues that Decedent’s services and financial support to her mother and daughters
had a quantifiable monetary value, which constitutes “property.”
We are unpersuaded. Under the Estate’s proposed broad reading, all
losses that can be assigned economic value constitute “property losses.” All
damages authorized in Section 8528(c) of the Sovereign Immunity Act can be
given a monetary value. The Estate’s overbroad reading of “property losses”
would render the itemized list of the “types of damages recoverable” under Section
8528(c) superfluous. See 1 Pa. C.S. §1921(a) (“[e]very statute shall be construed,
if possible, to give effect to all of its provisions.”).
Last, the Estate argues, as a matter of policy, that disallowing
surviving parents and children from collecting damages for the loss of future
services and financial support in a wrongful death action is inconsistent with the
evolving definition of a “family” in our society. The Estate asserts that many
children are being raised in single-parent homes, and an increasing number of
parents are receiving support from their children. To deny wrongful death
damages for the loss of a decedent’s financial support and services prevents
children and parents from obtaining meaningful recovery against the
Commonwealth in wrongful death actions.
The Estate concedes that a decedent’s lost earnings can be recovered
by parents and children through a survival action. It notes, however, that damages
recovered in a survival action, unlike those recovered in a wrongful death action,
are subject to the reach of the deceased’s creditors. Compare 42 Pa. C.S. §8301(b)
16
with 42 Pa. C.S. §8302. Therefore, any recovery in a survival action could be
substantially reduced during the estate administration process. The Estate asserts
that the legislature could not have intended this unjust result. We decline to
comment on the wisdom of the legislature in subjecting survival damages to claims
of creditors while shielding wrongful death damages from such claims. The
Estate’s policy argument is better addressed to the General Assembly.
Conclusion
For the above reasons, we hold that the Sovereign Immunity Act bars
a parent or child of a decedent from recovering damages in a wrongful death action
for the loss of the decedent’s future services and financial support. Accordingly,
we reverse the trial court’s order insofar as it overruled PennDOT’s preliminary
objection to the claims of Decedent’s mother and daughters for such damages. The
trial court’s order is affirmed in all other respects.
______________________________________
MARY HANNAH LEAVITT, President Judge
Judge Cosgrove dissents.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Edward J. Ewing and Mark E. :
Zooner, Sr., and Tiffany Sawyers, :
Co-Administrators of the Estate :
of Trudy Zooner, Deceased :
:
v. : No. 1471 C.D. 2016
:
Brian D. Potkul; and Commonwealth :
of Pennsylvania, Department of :
Transportation :
:
Appeal of: Commonwealth of :
Pennsylvania, Department of :
Transportation :
ORDER
AND NOW, this 27th day of September, 2017 the order of the Court
of Common Pleas of Fayette County dated August 11, 2016, in the above-
captioned matter is REVERSED insofar as it overruled PennDOT’s preliminary
objection to Court VI of the complaint. The trial court’s order is otherwise
AFFIRMED.
______________________________________
MARY HANNAH LEAVITT, President Judge