Altamuro did not act rashly, imprudently or so unreasonably as to constitute negligence on his part under the rescue doctrine.
There is no dispute that during the initial phase of the fire, Altamuro busied himself warning guests at the Hotel of the fire, and later he assisted Officer Markowski in helping people out of the building. The last time Altamuro was seen alive was when he left the Hotel after the firemen ordered all civilians out of the building. There was no evidence as to how Altamuro got back into the building. What prompted his return can only be surmised but, having been successful in two prior missions to the upper floors of the Hotel, I am not convinced that it was unreasonable for him to conclude that he could successfully complete another mission without unduly imperiling his own safety even though he disobeyed the order of the firemen by returning to the building.
II. Third-Party Defendant City of Philadelphia
The Milner Hotel joined the City of Philadelphia as a third-party defendant alleging that the City took possession and control of the building during the fire-fighting efforts; that the City was negligent in failing to prevent Altamuro from slipping back into the Hotel after the Fire Department personnel ordered all civilians to leave the building; and that this negligence was the proximate cause of Altamuro's death and therefore the Hotel should be entitled to contribution and/or indemnity from the City. The plaintiff has not asserted any claim directly against the City.
Assuming, without deciding, that the City had a duty to use reasonable care to prevent the plaintiff's decedent from entering the Hotel while it was in flames and thus exposing himself to harm,
and assuming further that the Political Subdivision Tort Claims Act, 42 Pa.Cons.Stat.Ann. §§ 8541-8564 (Purdon Supp.1981), would permit an action against the City in these circumstances, nevertheless, I find that the City did not breach this duty, but rather exercised reasonable care under the circumstances. The evidence is clear that once it became apparent to the fire personnel at the scene that the conflagration posed a grave danger, all persons were ordered out and a barricade was erected. There is no evidence that either the firemen or the police became aware that Altamuro had reentered the Hotel. The City is not an insurer or guarantor of a person's safety, see Chapman v. City of Philadelphia, 290 Pa.Super.Ct. 281, 434 A.2d 753 (1981), but is liable only for negligent acts which cause him harm. The Hotel's claim against the City must fall simply because it lacks proof. Accordingly, the Hotel is not entitled to recover from the City for contribution and/or indemnity.
The plaintiff, as the Administratrix of the estate of Joseph S. Altamuro, brought a survival action to recover damages to the decedent's estate, 42 Pa.Cons.Stat.Ann. § 8302 (Purdon Supp.1981) and a wrongful death action on behalf of herself and her children. 42 Pa.Cons.Stat.Ann. § 8301 (Purdon Supp.1981). She is permitted to claim under both Acts, but the damages must not overlap. Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949); McClinton v. White, 285 Pa.Super.Ct. 271, 427 A.2d 218 (1981). Recovery on the survival claim, which accrues to the estate, consists of compensation for pain and suffering, and damages for the loss of earning power of a decedent for his life expectancy less the cost of his maintenance. McClinton v. White, supra; Krakar v. Don Swart Trucking, Inc., 323 F. Supp. 157 (W.D.Pa.1971). "Recovery under the Wrongful Death Act, which runs in favor of the statutory beneficiaries, consists of funeral and medical expenses plus compensation for pecuniary loss suffered by reason of the decedent's death." Soares v. McClosky, 466 F. Supp. 703, 708 (E.D.Pa.1979).
Plaintiff's evidence on damages was as follows. She introduced the funeral bill, which amounted to $ 2,001.00, and the decedent's tax returns for the years 1974 through 1978. Plaintiff also introduced the testimony of an actuarial-economic consultant, who testified that Joseph S. Altamuro at the date of his death had a life expectancy of 30.5 additional years and that he had a work life expectancy of nineteen years. He further stated that his computations revealed that Altamuro's past lost earnings were in the amount of $ 45,572 after deducting his personal maintenance expenses, which the expert calculated at 24% of his earnings, and that his future lost earning capacity would be $ 288,800 after deducting the same amount of personal maintenance expenses. Thus, the total lost earning capacity of Altamuro, both past and future, after deducting his personal maintenance expenses, is $ 334,372.00.
In accordance with this evidence, I find that Altamuro's loss of expected lifetime earnings, minus his personal maintenance expenses amounts to $ 334,372. Furthermore, based on the medical examiner's testimony relating to the suffocation of decedent and the presence of burn blisters on Altamuro's face, I find that the plaintiff is entitled to recover damages for the decedent's pain and suffering prior to his death, even though it was for a short period of time. See Weiner v. White Motor Co., 223 Pa.Super.Ct. 212, 297 A.2d 924 (1972). The sum of $ 10,000 is reasonable compensation for this item of damages. Thus the total amount of damages awardable under the survival action is $ 344,372, but because the loss of earnings less personal maintenance expenses will duplicate an award in the wrongful death action, these damages will be eliminated from the survival action. See Ferne v. Chadderton, 363 Pa. 191, 69 A.2d 104 (1949); McClinton v. White, 285 Pa.Super.Ct. 271, 427 A.2d 218 (1981).
In McClinton v. White, 285 Pa.Super.Ct. 271, 427 A.2d 218 (1981), the Superior Court recently held that under the Wrongful Death Act the following damages are recoverable:
"(T)he deceased's probable earnings during the probable duration of the deceased's life, which could have gone for the benefit of the children, parent, husband or wife as the case may be; the value of such services as the deceased would have rendered to the named beneficiaries, and such gifts as the deceased would have been reasonably expected to have given the beneficiaries. The Wrongful Death Act itself also specifically provides for the recovery of medical expenses and funeral expenses. The cost of the tombstone and the cost of administration of the estate have also been held to be proper items of damage."
Id. at 278 n. 5, 427 A.2d at 221 n.5 (quoting 2 Feldman, Pennsylvania Trial Guide § 33.14). The "value of such services as the deceased would have rendered to the named beneficiaries", includes the society and comfort the deceased would have given to his family had he lived, work around the house and the guidance, tutelage and moral upbringing he would have given his children. See Thomas v. Conemaugh Black Lick Railroad, 133 F. Supp. 533 (W.D.Pa.1955), aff'd, 234 F.2d 429 (3d Cir. 1956); Spangler v. Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930).
There is no evidence in the record, however, to show what portion of his earnings Altamuro regularly contributed to his family; nor is there any testimony with respect to the customary services Altamuro rendered to his family. However, given today's economic conditions, a father of four with an annual income of $ 19,219
would spend his entire earnings, minus his personal maintenance expenses, on his family. Moreover, I find that, as a result of her husband's death, Mrs. Altamuro and her children will suffer intangible or non-monetary losses such as the loss of society, comfort and the normal services and guidance a husband father provides to his wife and children.
I therefore conclude that the plaintiff sustained the following damages under the Wrongful Death Act: (1) Funeral Expenses: $ 2,001; (2) Loss of deceased's earnings which would have gone to the benefit of his wife and children: $ 334,372; and (3) Value of non-monetary or intangible services which the deceased would have provided to his wife and children: $ 50,000.
Accordingly, the total damage award to the plaintiff under both Acts is as follows:
Under the Survival Act
Pain and Suffering $10,000
Under the Wrongful death
Act Funeral Expenses 2,001
Loss of Deceased's
Earnings Which Would
Have Gone to Wife and 334,372
Value of Non-Monetary or
Which Deseased Would
Have Provided To Wife
or Children 50,000
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
Accordingly, I arrive at the following
CONCLUSIONS OF LAW
1.The Court has jurisdiction over the subject matter and the parties.
2.The defendant, The Milner Hotel, Inc., by the acts of its employees, was negligent, and this negligence placed the lives of the residents in imminent peril. Such negligence was the cause of the death of Joseph S. Altamuro.
3.The plaintiff's deceased, Joseph S. Altamuro, did not act rashly, imprudently or unreasonably in his efforts to alert the residents of The Milner Hotel to the imminent danger of the fire and in aiding in their removal from the building.
4.The City of Philadelphia was not negligent and therefore is not liable to the defendant-third party plaintiff.
5.Plaintiff is entitled to judgment in her favor and against defendant The Milner Hotel, Inc. in the amount of $ 396,373.
6.The third-party defendant City of Philadelphia is entitled to judgment in its favor and against third-party plaintiff The Milner Hotel, Inc.