Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1966, No. 5002, in case of H. Shaw Seymour, administratrix of the estate of Robert T. Seymour, deceased v. Samuel R. Rossman and Leonard Abrams v. N. Blair LeRoy, M.D.
Stephen M. Feldman, with him Feldman & Feldman, for appellant.
Thomas B. Rutter, with him Harry A. Short, Jr., Alfred W. Cortese, Jr., Litvin and Rutter, and Pepper, Hamilton & Scheetz, for appellees.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Concurring Opinion by Montgomery, J. Cercone, J., joins in this concurring opinion. Dissenting Opinion by Hoffman, J.
[ 220 Pa. Super. Page 93]
Concurring Opinion by Montgomery, J.:
I respectfully concur in the action of the majority in affirming the lower court in this case since it is my opinion that the plain wording of the wrongful death act, Act of April 26, 1855, P. L. 309, § 1, as amended, 12 P.S. § 1602, on the distribution to be made on recoveries thereunder is not subject to judicial change but that any such change as requested by the appellant in this case must be made by the legislative branch of our government.
The facts of the case are set forth in the dissenting opinion to be filed by my colleague, Hon. J. Sydney Hoffman, who has therein afforded us an ardent and characteristically brilliant plea for us to be more activist in interpreting the wrongful death act. Although it is unnecessary for me at this time to express an opinion on the merits of the appellant's contention, it is to be noted that Judge Hoffman's opinion reflects a jurisprudential principle which has gained considerable respectability in the present age. The long history of the wrongful death act, which has spanned more than a century, demonstrates considerable movement toward and judicial enactment of that philosophy.
It is remarkable that, the wrongful death act having existed for so long and endured considerable judicial interpretation, the legislature has remained somnolent throughout its history. Originally, the legislature did not provide for the method by which damages were to be computed in a wrongful death case. That legislative failure to act is one of the causes leading to the present appeal and to the anomalous situation ...