Parents Barred from Recovering Non-Pecuniary Damages from Commonwealth Agency in Wrongful Death Action

The Sovereign Immunity Act bars parents from recovering non-pecuniary losses from a Commonwealth agency in an action for the wrongful death of their child, a Commonwealth Court panel held in Ebersole v. Southeastern Pennsylvania Transportation Authority, __ A.3d __ (No. 1732 C.D. 2014, filed March 12, 2015). Stephanie Jo Ebersole (Decedent) died after she was electrocuted and struck by a train at a SEPTA station in Philadelphia. The administrator of her estate filed an action under the Wrongful Death Act seeking damages for Decedent’s parents for the “pecuniary value of support, services, lost wages and comfort that

[Decedent] would have provided had she lived.” SEPTA moved for partial judgment on the pleadings, arguing that non-pecuniary damages are barred by the Sovereign Immunity Act. The trial court concluded that there was a “substantial ground for difference of opinion” on the issue, denied SEPTA’s motion, and certified the issue for immediate appeal.

In an opinion authored by Judge Leavitt, the Commonwealth Court reversed, holding that Department of Public Welfare v. Schultz, 855 A.2d 753 (Pa. 2004), is controlling. In Schultz, the Pennsylvania Supreme Court held that a parent could not recover non-pecuniary losses from the Commonwealth in the context of the Sovereign Immunity Act; it left open the question whether parents could recover such losses from a private party. The panel rejected Administrator’s argument that the Superior Court, in the more recent case of Rettger v. UPMC Shadyside, 991 A.2d 915 (Pa. Super. 2010), clarified that a parent’s loss of a deceased child’s companionship is the equivalent of a loss of consortium, which is recoverable under the Sovereign Immunity Act. Judge Leavitt noted that Rettger simply answers the question left open in Schultz, i.e., that parents may recover non-pecuniary damages under the Wrongful Death Act against a private party. For purposes of the Sovereign Immunity Act, “loss of consortium” was definitively construed in Schultz to mean damages available only to a spouse, not a parent.

In a concurring opinion, Senior Judge Friedman agreed that Schultz commanded the result. Judge Friedman opined that societal definitions of marriage and family have changed considerably since Schultz was decided, and the Superior Court’s broader interpretation of “consortium” in Rettger is consistent with current public policy. In Judge Friedman’s view, loss of consortium under the Sovereign Immunity Act should be expanded to include other types of non-pecuniary losses recognized under the law.



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By | 2017-05-19T22:51:30+00:00 April 1st, 2015|Categories: Civil Litigation|Tags: , , , , |Comments Off on Parents Barred from Recovering Non-Pecuniary Damages from Commonwealth Agency in Wrongful Death Action

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