[J-25A-2020 and J-25B-2020] [MO:Todd, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

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

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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

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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-25A-2020 and J-25B-2020] [MO: Todd, J.] - 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 uncontroverted 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 uncontroverted 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 household 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 built for her as a Mother’s 
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 3

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 and 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 

omitted). Accordingly, because Wife presented uncontroverted evidence establishing 

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 conclusion 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-chambers conference. Maj. Op. at 13-

14. To the extent the comments 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 monetary support Decedent would have contributed to Wife, which 

counsel characterized as “a relatively small amount compared to the other damages I’m 
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 4

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, the 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 

lawn, 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 Reading this argument in the context of the in-chambers conference, 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-133a); 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, cooperation, 

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-25A-2020 and J-25B-2020] [MO: Todd, J.] - 5

category of damages, even more substantial than the lost wages in the survival action. 

Likewise, the trial court’s comments in the 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., InChambers Conference, 7/17/17, at 9 (R.R. at 136a). Neither Wife’s counsel’s closing 

argument nor the trial court’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, in holding that the jury was not permitted to “engage in speculation” 

regarding the value of the loss of Decedent’s household services because Wife did not 

quantify their economic value, the 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 parent seeking wrongful death damages for the loss of services of 

his adult son. Id. at 597. It 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 in 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 pecuniary losses include the value of the decedent’s services, including 

household work).
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 6

Additionally, the three cases the Vrabel Court cited to justify its 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 earnings 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 determined 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 would 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 assign 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-25A-2020 and J-25B-2020] [MO: Todd, J.] - 7

A.2d at 637; 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 than 

zero dollars”).3 Accordingly, I would remand for a new trial on both economic and noneconomic 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 Decedent 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 husbanddecedent’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.