Tulewicz v. Southeastern Pennsylvania Transportation Authority

606 A.2d 427, 529 Pa. 588, 1992 Pa. LEXIS 249

• Court: Supreme Court of Pennsylvania
• Decided: March 17, 1992
• Docket: 51 E.D. Appeal Docket 1990
• Status: Published

Opinions

OPINION

McDERMOTT, Justice.

By order and opinion dated March 3, 1991, this Court reversed the Superior Court’s determination that a jury award, totalling $2,750,000.00 rendered in consolidated wrongful death and survival actions, was excessive. Within the time period prescribed by Rule 2542 of the Pennsylvania Rules of Appellate Procedure appellee made application for reargument, alleging for the first time that it was protected by a grant of immunity which predated the underlying accident. Reargument was granted, thus necessitating this opinion.

As the record discloses the decedent, Jane F. Tulewicz, was struck by one of appellee’s buses on January 4, 1979, and ultimately succumbed on January 16, 1979, without regaining consciousness. Letters of administration were issued to her husband, Francis Tulewicz, who filed multiple actions which were consolidated for trial. Verdicts were returned by the jury in the amount of $2,500,000.00 under the Wrongful Death Act¹ and $250,000.00 under the Survival Act.² Both verdicts were decreased by the amount of negligence attributable to the decedent and then molded in order to reflect damages for delay pursuant to Rule 238. Thereafter, SEPTA filed post-trial motions with only one being granted, to wit, its motion for remittitur as to the survival action. The trial court reduced by $100,000.00 the jury’s verdict in the survival action.

On appeal to the Superior Court the size of the wrongful death verdict was contested, along with other issues not here relevant. The Superior Court agreed with SEPTA and entered an order granting a new trial on the damages portion of the wrongful death action. 385 Pa.Super. 665, 555 A.2d 255. We granted allocatur to determine whether the Superior Court erred in this regard and concluded that it had. Tulewicz v. SEPTA, 529 Pa. 584, 606 A.2d 425 (1991). In so stating we made reference, in footnote 4 of our opinion, to the fact that SEPTA had claimed that its damages should be limited to the statutory cap as contained in 42 Pa.C.S. § 8528(b). We noted that this section was inapplicable to this case since that cap did not become effective until December 5, 1980, whereas this accident occurred on January 4, 1979.³

In its petition for reargument SEPTA argued for the first time that the grant of immunity upon which it relied was not that contained in 42 Pa.C.S. § 8522(a),⁴ the section cited in their prior filings, but rather under 42 Pa.C.S. § 5111,⁵ Act No. 1978-152, P.L. 788, which was in existence at the time of the accident. SEPTA argued that it was entitled to claim protection under the above statutory authority, and that its failure to raise this defense until it petitioned for reargument was not fatal since the defense is non-waivable. We granted SEPTA’s petition for reargument to address this issue.

In support of its position SEPTA has cited two of our recent decisions which involved the non-waivability of certain defenses. The first case involved the employer’s defense of Worker’s Compensation as a bar to an action by an employee against an employer, LaFlar v. Gulf Creek Industrial Park, 511 Pa. 574, 515 A.2d 875 (1986); the other involved the non-waivability of the protections of the Sovereign Immunity Act as stated in the case of In re Upset Sale, 522 Pa. 230, 560 A.2d 1388 (1989).

The latter case, which involved an action by a purchaser at a tax sale to recover damages against the taxing authority, is directly on point. There a property was purchased at a tax sale. However, due to the failure of the taxing authority to give proper notice to the owner, the sale was voided. The purchasers brought suit claiming damages for loss of interest on the amounts they borrowed to buy the property at the sale and were successful at both the trial court and Commonwealth Court levels. The taxing authority raised the defense of immunity for the first time in its petition for allowance of appeal, alleging therein that this defense could not be waived regardless of when it was raised. In relevant part this Court stated:

“The tax claim unit has raised their governmental immunity for the first time on appeal. They claim they are not only immune but that their immunity is not waivable, even if they negligently failed to do so before. Perhaps here is one reason their immunity cannot be waived; a governmental agency cannot be put at the mercy of negligent or agreed waiver by counsel of a substantive right designed to protect its very existence. Such negligence can spread, pebble in a pond, until the governmental agency would be engulfed in a tidal wave of liability ... The defense of governmental immunity is an absolute defense, directly analogous to our holding in workmen’s compensation cases and is not waivable ... nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature. [Citations omitted.]

522 Pa. at 232, 560 A.2d at 1389.

Based upon our holding in In re Upset Sale, id. we must agree with SEPTA that the defense of immunity is nonwaivable.⁶ This, however, does not end our inquiry, for appellant has argued that despite the specific grant of immunity contained in Act No. 1978-152, it is nonetheless inapplicable to metropolitan transportation authorities. It is appellant’s position that the former statute, by its clear terms, applied only to the Commonwealth, as opposed to agencies created pursuant to authority of the Commonwealth. We disagree.

We start our analysis by noting that in Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986), we held that SEPTA, by virtue of its enabling legislation, qualifies as a Commonwealth agency. We are not being asked to revisit that question here and thus SEPTA’s status as an agency of the Commonwealth is resolved: the question then becomes whether the now repealed statute was applicable to Commonwealth agencies.

We now turn to the competing statutes involved for an examination of their relevant terms. The relevant portion of Act 1978-152, provided:

“a) Amount recoverable. No verdict or verdicts against the Commonwealth on actions brought pursuant to § 5110 (relating to limited waiver of sovereign immunity) arising from the same cause of action or transaction or occurrence or series of causes of actions or transactions or occurrences shall exceed $250,000.00 in favor of any plaintiff or $1 million in the aggregate.” [emphasis supplied]

42 Pa.C.S. § 5111(a) (repealed). By contrast the amended Act provides:

“Actions against Commonwealth Parties”

“(b) Amount recoverable. Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000.00 in favor of any plaintiff or $1 million in the aggregate.”

42 Pa.C.S. § 8528(b). The appellant encourages a literal reading of the former statute, thereby limiting the cap’s applicability to only those actions directed against the Commonwealth, per se, and cites in support of his argument the fact that the amended statute specified “Commonwealth Parties.” We reject this argument for the following reasons.

Section 5110 of Act No. 1978-152, in relevant part, provided:

The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the following instances only and only to the extent set forth in this section and within the limits set forth in section 5111 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth agencies, and their officials and employees acting within the scope of their duties, for damages arising out of a negligent act or omission ...

42 Pa.C.S. § 5110 (repealed). Thus, when the two sections are read together,⁷ it is apparent that the Act was intended to cover “Commonwealth agencies.” Therefore, given our holding in Feingold, id., SEPTA is entitled to rely on the limitation of damages cap to the same extent as would the Commonwealth.⁸

SEPTA next argues that if the cap is determined to apply then the recovery in this case should be limited to $250,000.00, since according to the Act under which SEPTA is seeking protection, verdicts and causes of actions arising from the same transaction or occurrence shall be aggregated and that said aggregation should not exceed the cap for “any plaintiff.” 42 Pa.C.S. § 5111 (repealed).

SEPTA’s argument is based on its characterization that there is only one plaintiff involved in this case, that being the personal representative of the estate. It is appellant’s converse position that actions brought by relatives under the Wrongful Death Act and by the estate of the decedent under the Survival Act, are actions brought by distinct plaintiffs regardless of the fact that the same person may be championing each one. For the following reasons we reject the position tendered by SEPTA.

An action for wrongful death may be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. 42 Pa.C.S. § 8301(d); Pa.R.Civ.P. 2202(a). The damages recovered are not part of decedent’s estate, but rather are compensation to individual members of the family for their loss. It is an action unknown to the common law. Miller v. Preitz, 422 Pa. 383, 221 A.2d 320 (1966), overruled on other grounds, Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968).

A survival action, on the other hand, is not a new cause of action but one which “merely continues in [the decedent’s] personal representatives the right of action which accrued to the deceased at common law because of the tort.” Pezzulli v. D ’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942); 42 Pa.C.S. § 8302. The damages here are measured by the pecuniary loss to decedent. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956).

By virtue of Pa.R.Civ.P. 213(e) the two causes of action may be enforced in one action, and if independent actions are commenced they must be consolidated for trial. However even though the two actions have been consolidated, a jury must bring in a separate verdict for each cause of action. Feldman, Pennsylvania Trial Guide § 33.6. In addition, actions for damages under the two acts are cumulative, not alternative, and are not to overlap or result in duplication of damages. Pezulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). See generally Schwab v. P.J. Oesterling & Son, Inc., 386 Pa. 388, 126 A.2d 418 (1956).

In summary, the two actions are designed to compensate two different categories of claimants: one, the spouse and/or members of the family for their loss;⁹ two, the decedent through the legal “person” of her estate. Given these distinct categories and distinct classes of claimants, we are not persuaded by SEPTA’s argument that the bringing of the two causes of action by one named person, the administrator herein, subjects the respective parties to the $250,000.00 aggregate damage limitation cap. Therefore, separate damage caps should apply to each cause of action.¹⁰

SEPTA next argues that delay damages pursuant to Rule 238 of our Rules of Civil Procedure are not authorized under the Sovereign Immunity Act and that this Court’s rule-making authority does not extend to the imposition of damages where the General Assembly, in the exercise of its constitutional power, has not included such damages in the limited statutory waiver.

This issue was decided in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). There we determined that Rule 238 damages are procedural in nature and that the power to promulgate procedural rules governing business in the courts reste exclusively in the judiciary, PA. CONST., Art. V, § 10(c). We also determined that the same constitutional provision suspends the operation of statutes which are inconsistent with procedural rules promulgated by this Court. Consequently, we dismiss SEPTA’s challenge on this claim.

Accordingly, this matter is remanded to the trial court for proceedings consistent with this opinion.

LARSEN, J., files a dissenting opinion in which PAPADAKOS and CAPPY, JJ., join.

1 . 42 Pa.C.S. § 8301.

2 . 42 Pa.C.S. § 8302.

3 . We note that the trial judge in this case dismissed SEPTA’s argument on the same rationale.

4 . Act of October 5, 1980, P.L. 693, No. 142.

5 . Repealed by Act of October 5, 1980, P.L. 693, No. 142.

6 . The appellant has argued that our holding in In re Upset Sale is of questionable authority due to our recent decision in Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991), where it was implied in footnote 3 that the defense of immunity had been waived. However, since the injury in Walsh was determined to fall within the “Real property" exception to the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8542, the issue of the City’s failure to pursue the immunity defense was not in issue, and the Court’s comments therein were merely dicta.

7 . See 1 Pa.C.S. § 1921(a). See also, Consulting Engineers Council of Pennsylvania v. State Architects Licensing Board, 522 Pa. 204, 208, 560 A.2d 1375, 1377 (1989).

8 . The appellant additionally argues that the damage cap as contained in Act No. 1978-152, if applied to SEPTA, is violative of the equal protection clauses set forth in the 14th Amendment to the United States Constitution and Article I, Section 26 and Article III, Section 32 of the Pennsylvania Constitution and further argues that since SEPTA was directed to self insure that the General Assembly did not intend it to be covered by the statute. These arguments have been previously considered and rejected. Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990); Toombs v. Manning, 835 F.2d 453 (3d Cir.1987); Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986).

9 . We cannot accept appellant's assertion that separate limitation of damage caps should apply to the beneficiaries, appellant and his daughter, as plaintiffs under the wrongful death portion of the complaint. Rule 2202(a) of our Rules of Civil Procedure clearly provides that it is only the personal representative of the decedent who may maintain an action for wrongful death for the benefit of those persons entitled by law to recover damages for such wrongful death. Failing the filing of suit within six months following death, the action may be brought by the personal representative or by any person entitled by law to recover such damages, as trustee ad litem on behalf of all persons entitled to share in the damages. Id. Pa.R.C.P. 2202(b). The claimants are given by statute the right to recover damages, which right was denied them under the common law. That statutory grant did not convey upon them the right to maintain separate suits as co-party plaintiffs. For this reason appellant’s argument must fail.

10 . SEPTA has argued that the “verdicts" language contained in Act No. 1978-152 § 5110 which provides “No verdict or verdicts ... shall exceed $250,000.00 in favor of any plaintiff or $1,000,000.00 in the aggregate”, should be read to limit recovery in those instances where there are separate verdicts to $250,000.00. We feel that this is not the meaning intended and that the term "verdicts” was intended by the General Assembly to apply to the $1,000,000.00 limit where there are separate claims and verdicts involving more than one plaintiff or claim.