[J-25A-2020 and J-25B-2020] [MO: Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TINA MCMICHAEL, INDIVIDUALLY AND : No. 50 WAP 2019
AS EXECUTRIX OF THE ESTATE OF :
SETH W. MCMICHAEL, DECEASED : Appeal from the Order of the
: Superior Court entered April 15,
: 2019 at No. 721 WDA 2018,
v. : affirming in part and reversing part
: the Judgment of the Court of
: Common Pleas of Beaver County
MICHELLE J. MCMICHAEL, EXECUTRIX : entered May 7, 2018 at No. 11370-
OF THE ESTATE OF PETER D. : 2013 and remanding.
MCMICHAEL, DECEASED; JANICE :
MCMICHAEL; P&J CONSTRUCTION AND : SUBMITTED: April 16, 2020
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 :
TINA MCMICHAEL, INDIVIDUALLY, AND : No. 51 WAP 2019
AS EXECUTRIX OF THE ESTATE OF :
SETH W. MCMICHAEL, DECEASED, : Appeal from the Order of the
: Superior Court entered April 15,
Appellee : 2019 at No. 795 WDA 2018,
: affirming in part and reversing part
: the Judgment of the Court of
v. : Common Pleas of Beaver County
: entered May 7, 2018 at No. 11370-
: 2013 and remanding.
MICHELLE J. MCMICHAEL, EXECUTRIX :
OF THE ESTATE OF PETER D. : SUBMITTED: April 16, 2020
MCMICHAEL, DECEASED, AND P&J :
CONSTRUCTION AND LANDSCAPE :
NURSERY LLC, :
:
Appellants :
DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: NOVEMBER 18, 2020
I respectfully dissent. I would not second-guess the trial court’s exercise of
discretion to hold an award of non-economic damages was required on this record.
A wrongful death plaintiff “shall be entitled to recover, in addition to other damages,
damages for reasonable hospital, nursing, medical, funeral expenses and expenses of
administration necessitated by reason of injuries causing death.” 42 Pa.C.S. §8301(c).
This Court has amplified what kind of damages are allowed under the statute as follows:
“[w]rongful death damages are established for the purpose of compensating the spouse,
children, or parents of a deceased for pecuniary loss they have sustained as a result of
the death of the decedent. The damages recoverable in a wrongful death action include
the present value of the services the deceased would have rendered to the family, had
she lived, as well as funeral and medical expenses.” Kiser v. Schulte, 648 A.2d 1, 4 (Pa.
1994) (citations omitted). It is not crystal clear that “pecuniary loss[es]” such as “services
rendered to the family” or “funeral and medical expenses” necessarily include non-
economic damages for the loss of intangibles like consortium and companionship,1 but I
acknowledge our jurisprudence indicates wrongful death plaintiffs may recover the value
of “comfort [and] society” as a component of the lost “services” of a deceased spouse.
See, e.g., Spangler v. Helm’s New York-Pittsburgh Motor Exprs., 153 A.2d 490, 492 (Pa.
1959) (allowing wrongful death damages for “companionship, comfort, society, guidance,
solace, and protection which go into the vase of family happiness”). That said, however,
I would not hold such damages are always recoverable.
1 Indeed, I would suggest one reason the Superior Court “did not distinguish between
economic and non-economic wrongful death damages in its opinion,” or separately
“address whether Wife was entitled to non-economic” damages, Majority Opinion, slip op.
at 16, is because Section 8301 does not parse allowable damages in this way.
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 2
Appellee Tina McMichael had the burden to prove she is entitled to non-economic
damages arising from the loss of her “‘husband, friend and partner of 30 years,’” Majority
Opinion, slip op. at 15, quoting Appellee’s Brief at 27. As the majority recognizes, the
duty of assessing damages is “within the province of the jury, and, as trier of fact, the jury
weighs the veracity and credibility of the witnesses and their testimony.” Id. at 16. A court
may disturb the jury’s verdict only where it appears to have resulted from “passion,
prejudice, partiality, or corruption, or where it clearly appears from uncontradicted
evidence that the amount of the verdict bears no reasonable relation to the loss suffered
by the plaintiff.” Kiser, 648 A. 2d at 4. Applying these standards to the present record, I
conclude the Superior Court erred in granting a new trial on wrongful death damages.
Appellee testified about her marriage to Seth McMichael, which lasted from 1982
until his death in January 2013. The couple had three children, and appellee testified it
was a “happy marriage” and Seth was a good father. N.T. 7/13/17 at 155. Seth planted
trees, blueberry bushes, and built a grape arbor, cut the grass, did home repairs, drove
her to work in bad weather, did most of the cooking, and was a “very, very good cook.”
Id. at 156-58. Appellee testified that Seth would have fixed the hot water heater and
furnace, both of which needed repair, and in his absence she had to use a small gas
heater and wear heavy clothes at home. Id. at 156-57. Appellee also testified she
intended to live in a log cabin Seth had planned to build, for “[a]s long as he wanted me
to.” Id. at 161. Finally, on the morning of Seth’s death, appellee testified she told him not
to “forget we have date night, because we always had date nights.” Id. at 162.2
2Appellee also presented excerpts of a videotaped deposition of the couple’s son David,
who died before trial. David testified he was close to his father, and there were not “too
many days [they] weren’t together.” Deposition of David McMichael dated 6/5/15, N.T.
7/13/17 at 14 (R.R. 92a); N.T. 7/13/17 at 68.
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 3
As appellee’s entire case for non-economic damages was based on the foregoing
testimony, I am not convinced that a zero dollar verdict was so arbitrary and shocking that
a new trial is warranted as a matter of law. Appellee’s credibility was challenged on
several grounds,3 and the jury was correctly instructed they were free to reject her
testimony in its entirety. See, e.g., Carroll v. Avallone, 939 A.2d 872, 874 (Pa. 2007) (jury
is free to accept all, part, or none of the testimony of any witness; it is within jury’s province
to determine relative weight to be given to that testimony). The trial court acknowledged
appellee testified “her marriage with Seth was a good marriage in which they did projects
around the house together, such as building a grape arbor on Mother’s Day,” and “Seth
was a good father and was friends with his children.” McMichael v. McMichael, No.
11370-2013, slip op. at 10 (C.P. Beaver, April 20, 2018). But the court — who observed
the witnesses’ demeanor — also stated appellee’s testimony “barely touched upon their
actual relationship and what they did in their time spent together,” id. at 23, and there
“wasn’t really a lot of evidence” that Seth supported his family. N.T. 7/17/17 at 9. Indeed,
the court predicted the jury might award “zero” damages as a result. Id.
The trial court ultimately found “no evidence of unfairness, mistake, partiality,
prejudice, corruption or the like that requires disregarding the jury’s rejection of the claim
for non-economic damages here.” McMichael, No. 11370-2013, slip op. at 23. The court
recognized a “jury is free to disbelieve that non-economic injury flows from an incident,
which the jury obviously did here.” Id., citing Catalano v Bujak, 642 A.2d 448, 451 (Pa.
3 Appellee testified inconsistently about an alleged statement regarding her son David’s
death as the loss of her “star witness,” see, e.g., N.T. 7/13/17 at 167-169, and she was
also cross-examined about conflicts between her deposition and trial testimony. Id. at
172-176. See also McMichael v. McMichael, Nos. 721 and 795 WDA 2018, 2019 WL
1613152 at *10 (Pa. Super. filed April 15, 2019) (“effective cross-examination undercut
Wife’s credibility”).
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 4
1994). I find no abuse of discretion under the circumstances. Accordingly, in my view,
the Superior Court erred in overriding the trial judge’s assessment.
[J-25A-2020 and J-25B-2020] [MO: Todd, J.] - 5