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filed: June 3, 1983.


No. 2924 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Civil Action, Law, of Huntingdon County at No. 7 September Term, 1976.


Jack E. Feinberg, Philadelphia, for appellant.

Joseph W. Mullin, Huntingdon, for appellee.

Cavanaugh, Cirillo and Hoffman, JJ. Cirillo, J., concurs in result.

Author: Cavanaugh

[ 315 Pa. Super. Page 99]

This case involved a trespass action for wrongful death and survival action arising out of the death of Richard L.

[ 315 Pa. Super. Page 100]

Harvey who was killed when struck by an automobile which was driven by the appellee, David Lee Hassinger. Mr. Hassinger had been drinking heavily on November 8, 1975. The testimony established that he consumed a pint of liquor and a quantity of beer in excess of twenty quarts. While in this intoxicated condition he attempted to operate his motor vehicle and in the process drove up on the sidewalk and struck Mr. Harvey. As a result of the injuries received in the accident which occurred on the early morning of November 9, 1975, Mr. Harvey died.

Judy D. Harvey, as administratrix of her deceased husband's estate and in her own right commenced an action in wrongful death and a survival action against appellee. Trial was held before Terrizzi, J. and a jury and a verdict was entered against the appellee in the amount of $45,000.00 in the wrongful death action and for $250,000.00 in the survival action. Punitive damages were also awarded in the amount of $10,000.00. Appellee filed motions for new trial and for judgment non obstante verdicto and his motion for new trial was granted by Taylor, P.J. An appeal has been taken to this court from the order awarding a new trial.

The first issue is whether punitive damages were properly awarded by the jury in this case. With respect to the wrongful death action it is clear that punitive damages are not allowed. The Wrongful Death Act, Act of April 26, 1855 P.L. 309, 12 P.S. § 1602 sets forth the persons entitled to recover damages. As pointed out in the early case of Pennsylvania Railroad Company v. Vandever, 36 Pa. 298, 304 (1860): " The sum to be recovered [under Pennsylvania's Wrongful Death Act] is, therefore, the pecuniary loss which the plaintiffs have suffered from the death of their relative; and this is made more certain by the provision, that no other relative, and of course no other person, than those named, can recover anything . . ." (Emphasis added). See also, Pennsylvania Railroad Company v. Henderson, 51 Pa. 315 (1865); Palmer v. Philadelphia, Baltimore and Washington Railroad Company, 218 Pa. 114, 66 A. 1127 (1907). The question as to whether punitive damages are

[ 315 Pa. Super. Page 101]

    permitted in a wrongful death action is set to rest in Pennsylvania Railroad Company v. Henderson, 51 Pa. 315, 323 (1865) wherein it is stated that damages recoverable under Lord Campbell's Act, the forerunner of Pennsylvania's Wrongful Death Act do "not include the loss or suffering of the deceased, nor does it include the mental suffering of the survivor occasioned by such death, and it excludes all questions of exemplary damages." (Emphasis added).

A more difficult question is whether punitive damages are allowed under The Survival Act. The law pertaining to survival actions in effect at the time of this accident on November 9, 1975, is found in the Act of June 30, 1972, P.L. 508 No. 164, 20 P.S. § 3371 and provides:

§ 3371. Actions which survive

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 of one or more joint plaintiffs or defendants.

In a decision prior to the Pennsylvania No-Fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101, et seq., the federal district court allowed punitive damages where reprehensible conduct resulted in death. See Hennigan v. Atlantic Refining Company, 282 F.Supp. 667 (E.D.Pa. 1967), affirmed 400 F.2d 857 (3 Cir. 1968). The court stated at 282 F.Supp. at 683 "No mention is made [in The Survival Act] of damages per se. We see no reason to read into the act a limitation on the nature or amount of recovery. Certainly, the legislature was aware that the courts of Pennsylvania recognized punitive damages in an appropriate case, when they passed the act." In another pre-no-fault decision, a trial court considered the question of punitive damages in a survival action. In Cramer v. Noonan Engineering Company, 86 York L.R. 160 (1973) the ...

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