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INCOLLINGO v. EWING ET AL. (10/12/71)

decided: October 12, 1971.

INCOLLINGO
v.
EWING ET AL., APPELLANTS



COUNSEL

Edward W. Maderia, Jr., with him James T. Giles, Marilyn Mauskopf, and Pepper, Hamilton & Scheetz, for appellant.

Francis E. Shields, Dolores B. Spina, and Pepper, Hamilton & Scheetz, for appellant.

Joseph G. Manta, James M. Marsh, and LaBrum and Doak, for appellant.

James E. Beasley, with him Jeffrey M. Stopford, and Beasley, Hewson & Casey, for appellees.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Roberts.

Author: Pomeroy

[ 444 Pa. Page 300]

This case is now before us on reargument limited to the issue of the proper measure of damages. Appellants in their original briefs and argument had challenged

[ 444 Pa. Page 301]

    the disparity in the measure of damages for personal injury resulting in death, depending solely upon whether suit is commenced before or after the death. The issue was adverted to in Part 4 of our opinion, but not decided because the record before us did not show that the question had been raised at the trial by exceptions to the charge or in points for charge. See Evans v. Philadelphia Transportation Co., 418 Pa. 567, 212 A.2d 440 (1965). In their petition for reargument, appellants brought to our attention portions of the trial record, not included in the printed record on appeal, which showed that in fact the question had been properly raised and preserved at trial. We accordingly granted reargument and now address ourselves to the merits of the problem.

As indicated in our original opinion, the nub of the issue is whether two disparate rules relative to the measure of damages in survival actions should continue to coexist as they have for twenty years, or whether one or the other rule should be scrapped. The rule which the court below correctly applied in this case, because the action was commenced during the lifetime of the minor plaintiff, Mary Ann Incollingo, is that of Radobersky v. Imperial Volunteer Fire Department, 368 Pa. 235, 81 A.2d 865 (1951). Under the rule of that case, damages are awarded on the basis of the deceased plaintiff's anticipated gross earnings, with no deduction of cost of maintenance before reducing the loss of earnings to present worth. The rule which appellant urges upon us is that of Murray v. Philadelphia Transp. Co., 359 Pa. 69, 58 A.2d 323 (1948), applicable in cases where suit is commenced by the personal representative. Under Murray the measure of damages would be loss of net earning power -- gross earnings diminished by the amount the deceased plaintiff would

[ 444 Pa. Page 302]

    have had to expend for his own maintenance had he not died, reduced to present worth.*fn1

The arguments of the parties may be briefly summarized as follows: Appellant asserts that the dichotomy between the measures of damages is unjustifiable and that one rule applying to all survival actions should be adopted. That rule should be the realistically compensatory net earnings rule of Murray. The gross earnings rule of Radobersky awards damages which include the amount which the defendant would have had to expend on himself had he lived; when death has in fact occurred prior to suit, such an award is excessive and in effect punitive. Appellees counter that the Murray rule is the solitary aberration in a century of judicial decisions which establish estimated gross earnings as the standard of recovery, and if indeed the measure of damage rule is to be made uniform, it is the Murray decision rather than Radobersky which should be abandoned. Appellees' alternative position is that should we reverse the Radobersky decision, which was indisputably the governing law at the time of this trial, such ruling should in fairness be purely prospective so as not to apply in the instant case.

A brief review of the statutory and case law bearing upon the subject may be useful to an understanding of the problem. At common law, there was no recovery for wrongful death and the right of action for personal injuries whether or not suit had been commenced before death did not survive the death of an injured person. See Murray v. Philadelphia Transp. Co., supra; Pennsylvania RR v. McCloskey's Admr., 23 Pa. 526

[ 444 Pa. Page 303]

(1854). See generally Harper and James, The Law of Torts, § 24.1 et seq. (1956). This condition was remedied in Pennsylvania by legislative enactments, the most recent of which, with regard to survival actions, are §§ 601, 602 and 603 of the Fiduciaries Act of 1949.*fn2 Those sections provide as follows:

§ 601 "All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death ...


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