[ J
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WESTERN DISTRICT

TINA MCMICHAEL, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF SETH W. MCMICHAEL, DECEASED

v.

MICHELLE J. MCMICHAEL, EXECUTRIX OF THE ESTATE OF PETER D. MCMICHAEL, DECEASED; JANICE MCMICHAEL; P&J CONSTRUCTION AND LANDSCAPE NURSERY LLC; AND MARKWEST ENERGY PARTNERS, L.P.

APPEAL OF: MICHELLE J. MCMICHAEL, EXECUTRIX OF THE ESTATE OF PETER D. MCMICHAEL, DECEASED, AND P&J CONSTRUCTION AND LANDSCAPE NURSERY LLC : : : : : : : : : : : : : : : : : : : : : No. 50 WAP 2019 Appeal from the Order of the Superior Court entered April 15, 2019 at No. 721 WDA 2018, affirming in part and reversing part the Judgment of the Court of Common Pleas of Beaver County entered May 7, 2018 at No. 11370

- 2013 and remanding. SUBMITTED: April 16, 2020

TINA MCMICHAEL, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF SETH W. MCMICHAEL, DECEASED,

Appellee

v.

MICHELLE J. MCMICHAEL, EXECUTRIX OF THE ESTATE OF PETER D. MCMICHAEL, DECEASED, AND P&J CONSTRUCTION AND LANDSCAPE NURSERY LLC, Appellants : : : : : : : : : : : : : : : : : No. 51 WAP 2019 Appeal from the Order of the Superior Court entered April 15, 2019 at No. 795 WDA 2018, affirming in part and reversing part the Judgment of the Court of Common Pleas of Beaver County entered May 7, 2018 at No. 11370

- 2013 and remanding. SUBMITTED: April 16, 2020[ J

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- 2 CONCURRING AND DISSENTING OPINION

JUSTICE MUNDY DECIDED: NOVEMBER 18, 2020 In this case, the jury found Appellants were negligent and their negligence was a factual cause of harm to Decedent. Verdict Slip, 7/17/17, at 1 (R.R. at 247) . Nonetheless, the jury proceeded to award Wife zero dollars in economic and non

- economic wrongful death damages. Id. at 3 (R.R. at 249)

. Because the jury’s award had “no reasonable relationship to the loss suffered by the plaintiff based on the uncontr overted evidence presented,” Carroll v. Avallone , 939 A.2d 872, 874 (Pa. 2007), I join the Majority’s decision to affirm the Superior Court’s decision remanding for a new trial on non

- economic damages. However, I dissent from the Majority’s holding to the extent it does not also remand for a new trial on economic damages

. In awarding a new trial on non

- economic damages, the Majority explains “we cannot agree that P&J’s challenge to Wife’s ‘credibility globally,’ P&J Brief at 31, negated Wife’s otherwise un controverted testimony regarding her relationship with Decedent, so as to support an award of zero dollars in non

- economic wrongful death damages for a widow who lost her husband of 30 years.” Maj. Op. at 17. Similarly, I conclude that Wife’s uncontroverted testimony of the services Decedent provided to their household does not support an award of zero dollars in economic wrongful death damages. Wife’s uncontroverted testimony was that Decedent performed hous ehold repairs,
mowed the lawn , landscaped , cooked 80% of their meals, and drove Wife to work in
inclement weather . N.T., 7/13/17, at 155

- 57 (R.R. at 99a

- 101a)

. As examples of Decedent’s contributions to their household , Wife testified that after Decedent ’s death she
had to hire help to repair her hot water tank and her furnace, which were ordinarily repairs Decedent would have performed. Id. at 156

- 57 (R.R. at 100a

- 101a). Additionally, Wife stated she had to take down a grape arbor that Decedent had bui lt for her as a Mother’s[ J

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Day gift because she could not maintain it. Id. at 156 (R.R. at 100a). This uncontroverted evidence was sufficient to establish Appellants’ negligence caused pecuniary loss to Wife , i.e. , to prove damages in Wife’s wrongful death action

. See Carroll , 939 A.2d at 875 (“[i]f there is no argument or opposition on a particular point, the jury may not be free to disregard such information”) ; Neison v. Hines , 653 A.2d 634, 637 (Pa. 1995) (explaining

“ a jury is entitled to reject any an d all evidence up until the point at which the verdict is so disproportionate to the uncontested evidence as to defy common sense and logic ,” which was the holding of Kiser v. Schulte , 648 A.2d 1 (Pa. 1994) ); Gaydos v. Domabyl , 152 A. 549 (Pa. 1930) (explaining “[t]he reasonable expectation of pecuniary advantage to one standing in the family relation may be shown in many ways, but more frequently through services, food, clothing, education, entertainment, and gifts bestowed . . . [and] rendered
with a frequency that begets an anticipation of continuance”)

. Further, this evidence provided a “reasonably fair basis” for the jury to assign a value to those services.
Kaczkowski v. Bolubasz , 421 A.2d 1027, 1030 (Pa. 1980) (quotation marks and citation
omi tted). Accordingly, because Wife presented uncontroverted evidence establ ishing damages, the jury’s award of zero damages did not have any reasonable relationship to Wife’s injury. See Carroll , 939 A.2d 874 ; Neison , 653 A.2d at 637

. As support for its c onclusion that the award of zero damages was not shocking due to “the paucity of evidence,” the Majority quotes both Wife’s counsel’s closing argument and the trial court’s comments in an in

- c hambers conference. Maj. Op. at 13

- 14. To the extent the comme nts on the evidence, as opposed to the evidence itself, are relevant, those comments do not support the Majority’s conclusion. In the portion of Wife’s counsel’s closing argument quoted by the Majority, Wife’s counsel was referring exclusively to the mone tary support Decedent would have contributed to Wife, which counsel characterized as “a relatively small amount compared to the other damages I’m[ J

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about to talk about.” 1 N.T., 7/17/17, at 31

- 32 (R.R. at 194a

- 195a). The Majority does not
mention that Wife’s counsel then spoke about Wife’s non

- economic damages, or loss of consortium, as including the loss of Decedent’s household services:

[W]hat I can tell you is that those lost wages I mentioned a moment ago . . . that’s just the tip of the iceberg, th e part of the iceberg that just juts above the top of the water and then below the water line, the rest of that iceberg, that part, that is the life damages in this case. Now, Tina’s entitled to be compensated for the loss of Seth’s household services, society, comfort, and affection over the last four

- plus years and into the future, past and future. And you heard that Seth did a great amount around the house, that he was good at fixing things and took care of the law n , and that’s all fine, but I think the most telling example was this is a woman who works six days a week and takes all the overtime that she can, but when her furnace broke, her husband Seth wasn’t there to fix it, and she couldn’t afford a new one. So in the winter time she has a little space heater in her home and she walks around in a winter coat. That’s the loss that Seth could have helped her with. N.T., 7/17/17, at 34

- 35 (R.R. at 197a

- 198a). 2 Thus, Wife’s counsel argued that the loss of Decedent’s household services was a component of what he viewed as the largest

1 Read ing this argument in the context of the in

- chambers conf erence, Wife’s counsel likely argued for a small amount of monetary support because the trial court intended to mold the verdict by deducting any award of support from the lost earnings award in the survival action. N.T., In

- Chambers Conference, 7/17/17, at 5

- 6 (R.R. 132a

- 133 a ); see also Tulewicz v. Southeastern Pa. Transp. Auth. , 606 A.2d 427, 431 (Pa. 1992); Pezzulli v. D’Ambrosia , 26 A.2d 659 , 662 (Pa. 1942)

. 2 This conformed to the verdict slip’s characterization of economic damages as “support to family” and non

- economic damages as “loss of companionship, affection, assistance, etc.” Verdict Slip, 7/17/17, at 3 (R.R. at 249a) ; see also N.T., Jury Instructions , 7/17/17, at 53

- 54 (stating economic loss is “the amount of money that [Decedent] would have contributed to his family for support” and noneconomic loss is “the amount of money that will fairly and adequately compensate [] for the loss of companionship, c ooperation, affection, and assistance . . . . This is an area that has no economic figure given to you”)

. But see Spangler v. Helm’s N.Y.

- Pittsburgh Motor Exp. , 153 A.2d 490, 491

- 92 (Pa. 1959)[ J

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category of damages, even more substantial than the lost wages in the survival action. Likewise, the trial court’s comments in th e in

- chambers conference were limited to the financial support Decedent provided Wife from his wages, not the household services he provided: “[the jury] may not find any evidence that he supported his family, and therefore that could be zero, or it could be any number in between. There wasn’t really a lot of evidence, but the charge says it doesn’t have to be a mathematical certainty.” N.T., In

Chambers Conference, 7/17/17, at 9 (R.R. at 136a). Neither Wife’s counsel’s closing argument nor the trial cou rt’s remarks in the in

- chambers conference support the Majority’s reading of them as minimizing the value of the loss of Decedent’s household
services. Further, i n holding that the jury was not permitted to “engage in speculation” regarding the value of t he loss of Decedent’s household services because Wife did not quantify their economic value, t he Majority adopts the Commonwealth Court’s rationale
in Vrabel v. Commonwealth , 844 A.2d 595 (Pa. Cmwlth. 2004) . Maj. Op. at 13. Vrabel , however, involved a pa rent seeking wrongful death damages for the lo ss of services of
his adult son. Id. at 597. I t should remain limited to those facts. As this Court recognized
in Department of Public Welfare v. Schultz , 855 A.2d 753 (Pa. 2004), a parent’s claim for the wrongful death of a child cannot include a claim for non

- pecuniary losses (loss of consortium), as it is different from a spousal claim. Id. at 755. As spousal wrongful death
claims are thus different i n kind from the wrongful death claim of a parent arising out of an adult child’s death , I would not expand Vrabel ’s requirement to quantify pecuniary
losses to spousal wrongful death claims.

(stating p ecuniary losses include the value of the decedent’s services, including household work ).[ J

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Additionally, the three cases the Vrabel Court cited to justify i ts rule that a wrongful death plaintiff must prove the amount of the loss involved more readily quantifiable damages than those involved in the loss of a spouse’s services. See Kaczkowski , 421 A.2d at 1034 ( authorizing the computation of lost future earni ngs to include inflation and productivity); Aiken Indus., Inc. v. Estate of Wilson , 383 A.2d 808, 812

- 13 (Pa. 1978) (stating that the exact amount of breach of contract damages are generally difficult to prove, but the net profit percentage is able to be d etermined with some specificity) ; Gordon v. Trovato , 338 A.2d 653, 657 (Pa. Super. 1975) (holding a plaintiff must prove lost wages with specific evidence ). As this Court has recognized, It is frequently impossible to prove by direct evidence the actual amount in money contributed by a husband for the benefit of his wife and family. When there is testimony as to the age of the deceased, the expectancy of life, his occupation, the wages he received at and before the time of accident, the condition of his health, his habits of life as to industry, and that deceased was living with and keeping his wife and children, there is sufficient [evidence] on which a jury can properly find compensatory damages. Rowles v. Evanuik

, 38 A.2d 255, 258 (Pa. 1944).
I woul d apply Rowles to the loss of a spouse’s services in spousal wrongful death
actions. Here , Wife proved she suffered pecuniary loss in the form of the loss of decedent’s services sufficiently through uncontroverted evidence , and the jury was required to as sign a value to those damages. That Wife did not attempt to reduce to a
dollar amount the value of her loss of Decedent’s services does not support an award of zero damages. The “[d]amages for wrongful death are the value of decedent’s life to the family .” Slaseman v. Myers , 455 A.2d 1213, 1218 (Pa. Super. 1983). Here, the jury’s verdict that Decedent’s life had no economic value to Wife bears no reasonable relationship to the uncontroverted evidence. See Carroll , 939 A.2d at 874 ; Neison , 653[ J

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A.2d at 6 37; see also N.T., Jury Instructions, 7/17/17, at 56 (R.R. at 235a) (stating the life expectancy of all persons of Decedent’s age was an additional 20.5 years according to the United States Department of Health and Human Services) . At a minimum, Wife was entitled to nominal damages on these facts

. Accord McMichael v. McMichael , 2019 WL 1613152, at *13 (concluding “[w]hile Wife did not present specific dollar amounts for the services Decedent rendered to the household, it unquestionably amounted to more th an zero dollars”). 3 Accordingly, I would remand for a new trial on both economic and non

economic damages. See Rice v. Erie R.R. Co. , 114 A. 640, 641

- 42 (Pa. 1921) (awarding a new trial for a jury to assess at least nominal damages in wrongful death action where the trial court did not permit the jury to award damages because the plaintiff did not quantify the amount of pecuniary loss). For these reasons, I dissent from the Majority’s holding that Wife is not entitled to a new trial on the economic damages.

3 I disagree with the Majority that Wife was required to assign an “economic value” to Decedent’s household services. See Maj. Op. at 12 n.6. In my view, the uncontroverted evidence of the household services Deceden t performed , and would have continued to perform absent Appellants’ negligence, coupled with Decedent’s life expectancy of an additional 20.5 years provided the jury with a reasonably fair basis to award damages. This is analogous to the wife

- plaintiff in Rowles , who did not quantify her husband

decedent’s monetary support with a dollar figure but provided other evidence upon which this Court found the jury could assign damages. See Rowles , 38 A.2d at 258.