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MARNEE B. MCCLINTON v. BARBARA WHITE (03/13/81)

filed: March 13, 1981.

MARNEE B. MCCLINTON, ADMINISTRATRIX OF THE ESTATE OF ROBERT B. MCCLINTON, DECEASED, AND HARRY TONEY, ADMINISTRATOR OF THE ESTATE OF DINO TONEY, DECEASED,
v.
BARBARA WHITE, ADMINISTRATRIX OF THE ESTATE OF JAMES C. MCCLINTON, JR., DECEASED, AND LEE C. SMITH, APPEAL OF BARBARA WHITE, ADMINISTRATRIX OF THE ESTATE OF JAMES C. MCCLINTON, JR., DECEASED



No. 121 April Term, 1979, Appeal from the Order of the Court of Common Pleas of Beaver County, No. 1267 of 1976, Civil Action - Law.

COUNSEL

Samuel C. Holland, Beaver, for appellant.

Robert J. Campbell, Beaver Falls, for Marnee B. McClinton, appellee.

Frank C. Lewis, Beaver Falls, for Harry Toney, appellee.

Cercone, President Judge, and Montgomery and Lipez, JJ.

Author: Lipez

[ 285 Pa. Super. Page 275]

This is an appeal from a judgment in favor of appellees under the Survival Act.*fn1 Appellees' decedents Robert B. McClinton, age 16, and Dino Toney, age 18, were killed instantly in an auto accident. Following a bifurcated trial, the jury returned verdicts on the liability portion of the case against appellant Barbara White, administratrix of the Estate of James C. McClinton, Jr.*fn2 Thereafter verdicts were returned awarding each appellee damages in the amount of $170,000. Appellant's motions for new trial and judgment n.o.v. were denied and judgments were entered on the verdicts. This appeal, limited to the issue of damages, followed. Appellant cites a number of alleged errors, but we find it necessary to discuss only that one which, in our opinion, warrants reversal of the judgments.

The trial court instructed the jury that each estate was entitled to recover the present value of its decedent's loss of earning potential during his work life expectancy. To calculate the net loss of earning potential, the jury were instructed to deduct from each decedent's total earning potential "the probable cost of his necessary, economic living expenses and personal maintenance, those expenses required to sustain his life until the day of his retirement, whatever day

[ 285 Pa. Super. Page 276]

    you determine that would be." (R. 360) Recognizing, no doubt, the ambiguity inherent to the use of the term "personal maintenance," the trial court further instructed the jury as follows:

In considering the probable cost of maintenance, it should be pointed out to you that that amount is personal maintenance, it is that figure or that amount of money that you estimate or determine he would have spent on himself individually, personally, not what he would have spent on a wife, not what he would have spent on children, not on what he might have spent on parents, relatives or friends, not what he might have given away as gifts, but what he would have spent to provide himself with the necessities of life; that is, what he would have spent to sustain his life, to subsist and to live on. In other words, what he would have spent for those things which are essential to the individual's personal and physical subsistence . . . .

(R. 361) Appellant contends that the trial court erred in defining personal maintenance cost in terms of subsistence*fn3 level expenses. She argues that the deduction for maintenance costs is not limited to the amounts necessary to sustain life or to provide for physical subsistence, but, instead, includes all amounts which the decedent would have been reasonably likely to have spent upon himself during his lifetime. She also suggests that the proper measure of damages in these survival actions should have been based upon what each decedent would reasonably have accumulated and have remaining as a part of his estate at his death. While we do not subscribe to appellant's accumulated savings theory of damages for lost future earnings, we do find

[ 285 Pa. Super. Page 277]

    that the trial court's description of the maintenance expense deduction was overly restrictive and provided the jury with an incorrect standard for determining damages.

A consideration of the nature of survival actions is helpful in ascertaining the proper characteristics of the maintenance expense deduction. At common law a right of action for personal injuries did not survive the death of the injured person. See 2 Standard Pennsylvania Practice 26 et seq. This rule has been modified over time by various statutes until today all causes of action survive the death of a party. See 20 P.S. §§ 3371-3373; and 42 Pa.C.S.A. § 8302. See also, Moyer v. Phillips, 462 Pa. 395, 341 A.2d 441 (1975).

A survival action must be distinguished from an action for wrongful death. In Pennsylvania, a survival action compensates a decedent's estate for various categories of damage sustained by the decedent alone, whereas a wrongful death action is designed solely to deal with the economic impact of the death upon certain statutorily designated persons. Frazier v. Oil Chemical Company, 407 Pa. 78, 179 A.2d 202 (1962). A survival action, unlike a wrongful death action, is not a new cause of action, but, "merely continues in his personal representative the right of action which accrued to the deceased at common law . . . ." Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). In a survival action, the cause of action arises out of the injury, not out of the death. The estate is substituted for the decedent, and its recovery is based upon the rights of action which were possessed by the decedent at his death. The estate may recover for the loss of decedent's past and future earning power, for the decedent's pain and suffering prior to death, and for the cost of medical services, nursing, and hospital care provided to decedent. Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822 (1963). The estate may not, however, recover funeral expenses since, obviously, the decedent could not have brought an action for these expenses at the time of his death. See 2 Feldman, Pennsylvania Trial Guide § 33.15 and cases cited therein.

[ 285 Pa. Super. Page 278]

In contrast, a cause of action for wrongful death*fn4 is possessed by certain specified relatives of the deceased who recover in their own behalf and not as beneficiaries of the estate. Damages, which are based on the pecuniary loss suffered by the statutory beneficiaries, are determined from the standpoint of the beneficiaries, not from that of the deceased. Heffner v. Allstate Insurance Company, 265 Pa. Super. 181, 401 A.2d 1160 (1979).*fn5 Piacquadio ...


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