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ABU HUDA v. JAMES A. KIRK AND ABC EXPRESS (12/15/88)

decided: December 15, 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 AND ABC EXPRESS, INC., SYED KABIR AND CHARLES T. MAY AND MONTGOMERY TOWNSHIP AND COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLEES



Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of 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 v. James A. Kirk and ABC Express, Inc. and Syed Kabir and Charles T. May and Montgomery Township and Commonwealth of Pennsylvania, Department of Transportation, No. 84 03125.

COUNSEL

Mitchell S. Clair, with him, Leonard A. Sloane and M. Emmons Stivers, Caine, DiPasqua, Sloane & Raffaele, for appellants.

William A. Slotter, Deputy Attorney General, with him, LeRoy S. Zimmerman, Attorney General, for appellees.

President Judge Crumlish, Jr., and Judges Barry and Colins, sitting as a panel of three. President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, Palladino and McGinley. Opinion by Judge Barry. President Judge Crumlish, Jr. and Judge Colins concur in result only. Judge MacPhail did not participate in the decision in this case.

Author: Barry

[ 122 Pa. Commw. Page 130]

In Huda v. Kirk, 536 A.2d 513 (1988), we affirmed an order of the Court of Common Pleas of Montgomery County and held that 42 Pa. C.S. § 8528 did not permit an action of wrongful death to be maintained against the Commonwealth. Abu Huda, appellant and plaintiff below, along with his minor children, who had sought to recover damages for the wrongful death of the decedent, requested reargument; we granted their request on April 8, 1988. Following reargument and consideration of this matter, we overrule Huda and hold that a limited action for wrongful death can be maintained against the Commonwealth.

[ 122 Pa. Commw. Page 131]

As we noted in Huda, one of the types of damages recoverable against the Commonwealth is loss of consortium. 42 Pa. C.S. § 8528(c)(4). In their complaint, appellants seek the following damages. "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 the loss of comfort and society of the decedent. Moreover, they have incurred other expenses, including loss of her income, and certain other medical and funeral expenses." (Count 1, paragraph 34). Appellants have argued in both the original argument and the reargument that inclusion of loss of consortium in the types of damages recoverable against the Commonwealth shows the legislative intent to allow recovery for wrongful death. In our original decision in Huda, we stated, "The damages which appellants seek in Count 1, paragraph 34, of their complaint, which would have been included in a wrongful death action, are not enumerated in 42 Pa. C.S. § 8528(c). . . ." 536 A.2d at 514. Upon reconsideration of this matter, we believe this narrow view is not in keeping with the legislative intent as evidenced by Section 8528(c).

"Consortium" is defined as "[c]onjugal fellowship of husband and wife, and the right of each to the companionship, society, co-operation, affection, and the aid of the other in every conjugal relation." Black's Law Dictionary 280 (5th ed. 1979). Almost a century ago, the Pennsylvania Supreme Court stated:

In the case last cited [Henry & Wife v. Klopfer, 147 Pa. 178, 23 A. 337], it is said: 'The husband is entitled to recover the moneys he has expended or become liable to pay for the medical care and attendance upon his wife during her illness, and for the loss of her services while unable to attend to her domestic duties.' In Cooley on Torts, 226, the general doctrine on the subject is

[ 122 Pa. Commw. Page 132]

    stated thus: 'For an injury to the wife, either intentionally or negligently caused, which deprives her of the ability to perform services, or lessens that ability, the husband may maintain an action for the loss of service. . . .' Speaking of the origin, etc., of the term 'services,' the same learned author says the word as now understood in connection with claims by husbands for damages, etc., 'implies whatever of ...


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