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

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. ยงยง 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 ...


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