In re the Estate of Wolfe

Dissenting Opinion by

POPOVICH, J.:

¶ 1 I respectfully dissent from the majority’s finding that Appellant had established a pecuniary loss and, therefore, was entitled to an intestate share of the proceeds of the wrongful death action.

¶2 The majority found that the trial court erred in determining that Appellant failed to establish that she suffered pecuniary loss in the death of her father and, therefore, had a right to share in the Wrongful Death proceeds.

¶3 I believe that the trial court was correct in determining that Appellant, like all beneficiaries, must demonstrate a pecuniary loss. Cf. 42 Pa.C.S.A. § 8301(a); Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549 (1930); Gillette v. Wurst, 869 A.2d 488 (Pa.Super.2005). As Appellant was an adult child of the decedent, pecuniary loss is not assumed, as in the case of a minor child; therefore, she must prove direct pecuniary loss. Gaydos, at 532, 152 A. at 553.

¶ 4 An adult child can establish pecuniary loss by the existence of gifts and services from the decedent to the adult child if those gifts or services are rendered with sufficient frequency that it is reasonably certain that the gifts or services would have continued had the decedent not died. *1204Gaydos, at 530, 152 A. at 552. However, occasional gifts are not sufficient on which to ground pecuniary loss. Id., at 530, 152 A. at 552.

¶ 5 The Orphans’ Court credited Appellant’s testimony about the gifts that her father had provided to her. Appellant stated that each time her father visited, which was at least twice a month, he brought something. Further, Appellant stated that her father had assisted with her collegiate education expenses, assisted in her purchase of an automobile during college, provided another vehicle for her to use during graduate school, and gave her cash and groceries while she was attending graduate school. See N.T., 3/14/2005, at 17, 19. Appellant further testified that following graduate school, her father provided cash, furniture, and appliances. See id., at 32. He also paid for her honeymoon vacation following her wedding. See id., at 54. She also testified that he helped her remodel her family home and often took her family out to dinner. See id., at 21, 26. Appellant testified that her father was going to pay for her son’s education. See id., at 23. The majority concluded that these gifts and services, ie., education, entertainment, and food, established Appellant’s pecuniary loss. I disagree.

¶ 6 I believe that Appellant’s testimony demonstrated that the decedent did not provide support for her. The decedent did not provide for any of the living expenses of Appellant and her family. See N.T., 3/14/2005, at 34-36. She was not dependent on her father at the time of his death. I believe that the more current gifts that the decedent did provide to Appellant were occasional in nature. Appellant’s testimony was not specific as to the gifts that the decedent brought every time that he visited her to establish sufficient consistency as to create an anticipation of their continuance. She stated that on occasion, her father would give her or her husband sometimes fifty dollars and sometimes a hundred dollars in cash when he would visit or he would take them out to dinner. See id., at 27. I believe that the cash or meals that the decedent provided to Appellant when he visited her were akin to occasional gifts and not anticipatory in nature, unlike a parent’s payment of a monthly bill.

¶ 7 Further, I believe that Appellant’s testimony demonstrated that, in the past, she was dependent on her father, and he provided her support. Appellant’s testimony regarding the assistance during college and graduate school and regarding the support immediately following graduate school demonstrated that during that time in Appellant’s life, she was supported by the decedent. However, as time progressed, Appellant became self-supporting in that she no longer relied on the decedent to provide for her support. Therefore, these past gifts were not relevant to Appellant’s anticipation because her father only provided for her when she was in need of support. As I noted above, at the time of the decedent’s death, Appellant was not dependent. She and her husband were the providers for her family.

¶ 8 In conclusion, I feel that Appellant failed to establish pecuniary loss and, therefore, was not entitled to receive Wrongful Death proceeds pursuant to 42 Pa.C.S.A. § 8301. Accordingly, I would affirm the Orphans’ Court finding that Appellant did not establish a pecuniary loss.