Ebersole v. Southeastern Pennsylvania Transportation Authority

CONCURRING OPINION BY

Senior Judge FRIEDMAN.

I agree with the majority that under the circumstances of this case, we are bound by Department of Public Welfare v. Schultz, 579 Pa. 164, 855 A.2d 753 (2004), and must, therefore, reverse. I write separately to note that, were we not bound by Schultz, I would affirm the order of the esteemed trial judge.

Had the defendant been a private entity, Decedent’s parents would have been permitted to pursue their claim for non-pecuniary damages resulting from their child’s death. As the majority acknowledges, Schultz left open the question of whether a parent can recover non-pecuniary damages where the Sovereign Immunity Act is not implicated. More recently, the Pennsylvania Superior Court addressed that question and concluded that parents can recover damages for the loss of companionship and society resulting from the death of a child under the Wrongful Death Act. See Rettger v. UPMC Shadyside, 991 A.2d 915, 932-33 (Pa.Super.2010); accord Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229, 1236 (Pa.Super.2012). In so holding, the Superior Court equated loss of services under the Wrongful Death Act with loss of consortium, noting that “the term services ... clearly extends to the profound emotional and psychological loss suffered upon the death of a parent or a child where the evidence establishes the negligence of another as its cause.” Rettger, 991 A.2d at 933.

While I recognize that a Superior Court decision cannot overrule a Pennsylvania Supreme Court decision, I believe that the Superior Court’s more recent interpretation of consortium is consistent with current public policy. The Schultz Court narrowly defined loss of consortium as a loss of society and companionship between spouses. Schultz, 855 A.2d at 755. However, societal definitions of marriage and *292family have changed considerably since 2004. It is only logical that loss of consortium, as used in the Sovereign Immunity Act, should be expanded to include other types of non-pecuniary losses that have been recognized under the law, including the loss of society and companionship resulting from the death of a child. Perhaps the Pennsylvania Supreme Court or the Pennsylvania legislature will revisit this important issue in light of Rettger and pervasive societal changes that have called Schultz’s definition of consortium into question. I certainly hope so.