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ABU HUDA v. JAMES A. KIRK ET AL. (01/28/88)

COMMONWEALTH COURT OF PENNSYLVANIA


filed: January 28, 1988.

ABU HUDA, AS ADMINISTRATOR OF THE ESTATE OF NADIRA HUDA AND ABU HUDA, AS PARENT AND NATURAL GUARDIAN OF IRFAN HUDA AND EMRAN HUDA AND ABU HUDA, IN HIS OWN RIGHT AND SHAMSUL ISLAM, APPELLANTS
v.
JAMES A. KIRK ET AL., APPELLEES

The above action is hereby transferred to Commonwealth court of Pennsylvania from the Superior Court of Pennsylvania to No. 3186 Philadelphia, 1986 and from the Court of Common Pleas of Montgomery County to No. 84-03125, Honorable Albert R. Subers, Judge.

COUNSEL

Mitchell S. Clair, Esq., Leonard A. Sloane, Esq., CAINE, DIPASQUA, SLOANE, RAFFAELE & NIGRO, for appellant.

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF TRANSPORTATION: William A. Slotter, Esq., Office of Atty. General, for appellee.

Crumlish, Jr., P.j., Barry, Colins, JJ.,

Author: Colins

Opinion BY JUDGE COLINS

Appellants, Abu Huda et al., appeal the decision of the Court of Common Pleas of Montgomery County which sustained appellees', Commonwealth of Pennsylvania, Department of Transportation's (DOT) preliminary objections in the nature of a Motion to Strike.

On February 8, 1983, Nadira Huda (decedent) was killed in an automobile accident. Also in the car with her were her two children, who were injured. Appellants allege, inter alia, that DOT knew that a sight-distance problem existed at the accident site and took no action to correct the problem.

In Count I of their complaint, entitled "Wrongful Death," appellants state:

34. By reason of the death of the decedent, the said beneficiaries have suffered pecuniary losses, loss of value of the services of the decedent, and loss of comfort and society of the decedent. Moreover, they have incurred other expenses, including the loss of her income, and certain medical and funeral expenses.

DOT filed preliminary objections to appellants' complaint averring, among other things, that damages for wrongful death are not recoverable against DOT as a matter of law. The Court of Common Pleas of Montgomery County sustained DOT's preliminary objections, and, for the reasons below, we affirm.

Appellants argue that the trial court erred in its analysis of the sections of the Judicial Code pertaining to sovereign immunity (Code), 42 Pa. C.S. §§ 8521-8528. Specifically, appellants assert that future loss of earnings and earning capacity and loss of consortium are recoverable in a wrongful death action.

Section 8528(c) of the Code provides:

(c) Types of damages recoverable. Damages shall be recoverable only for:

(1) Past and future loss of earnings and earning capacity.

(2) Pain and suffering.

(3) Medical and dental expenses including the reasonable value of reasonable and necessary medical and dental services, prosthetic devices and necessary ambulance, hospital, professional nursing, and physical therapy expenses accrued and anticipated in the diagnosis, care and recovery of the claimant.

(4) Loss of consortium.

(5) Property losses, except that property losses shall not be recoverable in claims brought pursuant to section 8522(b)(5) (relating to potholes and other dangerous conditions).

The Superior Court of Pennsylvania stated in McClinton v. White, 285 Pa. Superior Ct. 271, 277-78, 427 A.2d. 218, 221 (1981):

In a survival action, the cause 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. 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. (Citations omitted.)

In footnote No. 5, the McClinton court stated, in comparison:

Recoverable damages under the Wrongful Death Act have been held to include 'the present worth of the 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.' (citations omitted.)

The damages which appellants seek in Count I, paragraph 34, of their complaint, which would be included in a wrongful death action, are not enumerated in 42 Pa. C.S. § 8528(c) of the Code.

Therefore, Judge Albert Subers in the instant case correctly stated, "we conclude that Section 8528(c) clearly is limited in scope to the type of damages properly recoverable in a Survival Action, not a Wrongful Death Action." The types of damages which are recoverable in Section 8528(c) of the Code are recoverable by the decedent's estate because they are clearly expenses incurred by the decedent, for which the decedent could bring suit had the decedent survived.

Finally, appellants incorrectly state that loss of consortium is "an item of damage recoverable under its Wrongful Death Statute . . . . " The Superior Court of Pennsylvania recently held in Linebauch v. Lehr, 351 Pa. Superior Ct. 135, 139, 505 A.2d 303, 305 (1986), "a surviving spouse cannot maintain a separate cause of action for loss of consortium resulting from the death of a spouse but must instead recover damages for loss of the deceased spouse's society in an action for wrongful death." (Emphasis added.)

Accordingly, we affirm the order of the trial court and remand the case to the Court of Common Pleas of Montgomery County for further proceedings on the remaining counts.

Order

AND NOW, this 28th day of January, 1988 the order of the Court of Common Pleas of Montgomery County in the above-captioned matter is affirmed and the case is remanded to that court for proceedings consistent with this opinion.

Jurisdiction relinquished.

19880128

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