Appeals from the Order of the Court of Common Pleas of Delaware County, in case of Britton Murdoch, Executor of the Estate of Billie C. Strawbridge v. Commonwealth of Pennsylvania, Estate of William Eason, Joseph Winchester, Mr. and Mrs. Anthony Mancini and Foggia Builders, Inc., No. 79-4417.
Jeffrey M. Stopford, for appellant/appellee, Britton Murdoch, Executor of Estate of Billie C. Strawbridge, deceased.
Celeste Yvonne Lamb, Deputy Attorney General, with her, LeRoy S. Zimmerman, Attorney General, for appellees/appellants, Commonwealth of Pennsylvania, Estate of William Eason and Joseph Winchester.
Jean C. Hemphill, with her, E. Paul Maschmeyer, of Counsel: Monteverde, Hemphill, Maschmeyer & Obert, for appellants/appellees, Mr. and Mrs. Anthony Mancini.
John R. Riddell, with him, J. Joseph Herring, Jr., Fronefield and deFuria, for appellee, Foggia Builders, Inc.
Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Judge Colins dissents.
[ 110 Pa. Commw. Page 76]
On January 22, 1979, Mrs. Billie Strawbridge was killed when the car which she was driving was struck head-on. The accident was caused when an on-coming vehicle hit a patch of ice on West Chester Pike causing the driver to lose control of her vehicle, cross the median, and strike the Strawbridge vehicle.
Britton Murdoch, Executor of the Estate of Billie Strawbridge, brought a wrongful death*fn1 and survival action.*fn2 After a trial, the jury returned a verdict in favor of the Estate on both the wrongful death and survival actions, apportioning liability as follows: Commonwealth of Pennsylvania 40%, Estate of William Eason (DOT employee) 5%, Joseph Winchester (DOT employee) 5%, Mr. and Mrs. Anthony Mancini 25%, and Foggia Builders, Inc. 25%. The parties filed numerous post-trial motions and after oral argument before the Court of Common Pleas of Delaware County en banc, the trial court granted Defendants'/Appellees' motion for new
[ 110 Pa. Commw. Page 77]
trial limited only to the issue of damages.*fn3 Appeal was perfected to this court.*fn4
Appellant's decedent was the beneficiary of two testamentary trusts established by the wills of her husband, Francis Strawbridge, Jr., and father-in-law, Francis Strawbridge, Sr. Both men had predeceased Billie Strawbridge. At the time of her death, decedent was receiving $15,600 per year from her husband's trust, which she would have continued to receive for the remainder of her life. Thereafter, the trust income would have been divided into fifths, going equally to the three children of Mr. Strawbridge from a former marriage and the two children of decedent also from a prior marriage.
Decedent was not yet receiving any income from the trust created by her deceased father-in-law's will because her mother-in-law was, at 98 years of age, still alive. However, upon her mother-in-law's death, decedent would have been entitled, by the terms of the will, to her husband's one-quarter share. Thus, she would have received $69,450 per year from her father-in-law's trust. Upon decedent's death, that trust income would have passed only to Mr. Strawbridge's children, in accordance with a provision of her ...