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MARNEE B. MCCLINTON v. BARBARA WHITE (04/21/82)

decided: April 21, 1982.

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



No. 81-1-47, Appeal from the Order of the Superior Court at No. 121 April Term, 1979, dated March 13, 1981, reversing the judgment entered by the Court of Common Pleas of Beaver County, Civil Action-Law, at No. 1267 of 1976 and remanding for a new trial.

COUNSEL

John A. Miller, Petrush & Miller, Beaver Falls, for Marnee B. McClinton.

Frank C. Lewis, Hudacsek & Lewis, Beaver Falls, for Harry Toney.

Samuel C. Holland, Panner, Holland & Autenreith, Beaver, for Barbara White, etc.

Edward J. Tocci, Aliquippa, for Lee C. Smith.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ.

Author: Roberts

[ 497 Pa. Page 612]

OPINION OF THE COURT

This is a survival action. The sole issue is whether the trial court properly instructed the jury on the "personal maintenance" deduction. A panel of the Superior Court was of the view that a new trial is necessary because the instruction unduly limited the scope of items includible within the deduction to "subsistence level expenses." We hold that on the present record the court's charge does not require a new trial. Hence we vacate the order of the Superior Court, 285 Pa. Super. 271, 427 A.2d 218, and remand for further proceedings.

I

Appellants' decedents Robert McClinton (age 16) and Dino Toney (age 18) were passengers in a vehicle being driven by appellee's decedent James McClinton. The vehicle struck another vehicle being driven by Lee Smith. Smith survived the accident, but all of the others were killed instantly. Appellants commenced the present action against appellee and Smith. In the liability phase of trial, a jury held only appellee liable.

[ 497 Pa. Page 613]

In the phase of the trial relating to damages, appellants sought recovery for the lost earnings of the decedents. After presenting evidence on the interests, talents, and ambitions of their decedents, appellants presented the testimony of Dr. Reuben Slesinger, Professor of Economics at the University of Pittsburgh. Utilizing statistics on average incomes complied by the United States Department of Commerce and tables on work-life expectancies compiled by the United States Department of Labor, Dr. Slesinger calculated the decedents' earning potential both as college graduates and as high school graduates.

From the gross earning potential of the decedents Dr. Slesinger subtracted 35% of the computed sums to reflect a deduction for his estimates of "personal maintenance." This deduction was based on the assumption that both of the decedents would marry and become members of a four-person "model" family. The 35% figure, derived from United States Department of Labor statistics, reflected the individual share of the model family's budget of a person under thirty-five years of age. Dr. Slesinger applied the 35% figure to all years of the decedent's work-life expectancy. Personal maintenance included expenditures for "food, clothing, things of this type."*fn1

Dr. Slesinger subtracted an additional 3.5% of decedents' gross earning potential to reflect "personal absences." This deduction was based on a recently released study which had concluded that "people throughout a work year tend to take off about nine days, . . . or about three-and-a-half percent of their work year . . . ." According to Dr. Slesinger,

"[t]his is not your vacation where you are paid. It is not sickness where you are paid. It is just you don't show up for work. Maybe they want to go hunting, or maybe they just don't feel like going to work that day. Now, that three-and-a-half percent is a deduction of ...


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