author: ROWLEY, Judge: BROSKY, J.,

text:
    517 A.2d 1348
    Michael STEINER, a minor by Anna STEINER, his Guardian, and Douglas Steiner, a minor by Anna Steiner, his Guardian, Appellants, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA, Appellee.
    Superior Court of Pennsylvania.
    Argued April 7, 1986.
    Filed Nov. 18, 1986.

      Kenneth W. Behrend, Pittsburgh, for appellants.
    Jeffrey J. Leech, Pittsburgh, for appellee.

      Before GRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, MONTEMURO, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.

       Judge Tamilia did not participate in the decision of this case.

   OPINION OF THE COURT

ROWLEY, Judge:

The sole issue raised in this appeal is whether Pennsylvania should recognize a cause of action by a child for loss of parental consortium when the parent is injured by a third-party tort-feasor’s negligence. For the reasons set forth herein, we affirm the order of the trial court and refuse to recognize such a cause of action.

On December 29, 1981, the two minor appellants were at home with their mother when someone broke into the house. Hearing the intruder’s footsteps, the appellants’ mother dialed the Bell Telephone Company’s directory assistance number and was placed on hold twice by the operator before being connected with the police only seconds before the intruder interrupted her telephone call and raped her. The assailant was not apprehended. Because of the incident, appellants’ mother is allegedly suffering emotional problems which are a contributing factor to the marital discord of appellants’ parents.

The appellants sued Bell Telephone Company on the theory that it was liable to them for the injury to their “family relationship” resulting from their parents’ marital breakdown caused by the criminal attack on their mother which could have been impeded, had appellee not negligently handled their mother’s telephone call. On March 16, 1984, the trial court granted appellee’s preliminary objections in the nature of a demurrer and dismissed appellants’ complaint for failure to state a legally cognizable cause of action. Appellants filed a timely appeal from the order of March 16, 1984, and the case was certified to be argued before the court en bane.

On our review of an order sustaining preliminary objections, we must determine whether the facts averred are sufficient to establish a legal cause of action. Monti v. Pittsburgh, 26 Pa.Cmwlth. 490, 364 A.2d 764 (1976). Only if it is clear and free from all doubt will we affirm the order sustaining the preliminary objections, and any doubt must be resolved in favor of overruling the preliminary objections. Zelik v. Daily News Publishing Co., 288 Pa.Super. 277, 431 A.2d 1046 (1981); Girard Trust Bank v. Life Insurance Co., 243 Pa.Super. 152, 364 A.2d 495 (1976).

The proposed cause of action for a child’s loss of consortium has numerous elements. Those courts which have recognized the cause of action have included various items in their definition of consortium between a parent and child. In Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690, 696 (1980) the court held that “children have a viable claim for loss of parental society if they can show that they were minors dependent on the parent ... [for] filial needs [of] closeness, guidance and nurture.” In Hay v. Medical Center Hospital of Vermont, 145 Vt. 533, 496 A.2d 939, 492 (1985), the court noted that parental consortium included love, companionship, affection, society, comfort, services and solace. In Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984), the court included care, guidance, love and protection as the elements which the children lost when their father was injured. And the courts in Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984), Berger v. Weber, 82 Mich.App. 199, 267 N.W.2d 124 (1978) aff’d. 411 Mich. 1, 303 N.W.2d 424 (1981), and Reighley v. International Playtex, Inc., 604 F.Supp. 1078 (D.Colo.1985) have similarly defined parental consortium.

In the instant case, appellants in their brief have asserted that consortium includes society, association, companionship, comfort, affection, nurture, moral training, education, and guidance. Appellants’ brief at 5-6. The amicus curiae, Pennsylvania Trial Lawyers Association, limits its definition to aid, comfort and society. Brief of Amicus Curiae at 6. Neither party nor the amici curiae have questioned the sufficiency of the factual averments of loss of parental consortium in appellants’ complaint, and therefore, this issue has not been addressed by the trial court. Assuming, without deciding, that the complaint in this case is sufficient we will address the only issue which the parties have raised, briefed and argued: whether to recognize a cause of action for a child for loss of parental consortium due to negligent injury of the parent.

I.

A.

The parties and amici curiae have presented numerous arguments setting forth the reasons why we should and why we should not recognize a cause of action for loss of parental consortium. Appellants’ arguments and those of the Pennsylvania Trial Lawyers Association can be divided into two classes: those which affirmatively assert why we should recognize a child’s cause of action and those which rebut the arguments against recognition of such a cause of action.

First, appellants assert that there is no Pennsylvania case law expressly denying a child’s cause of action for loss of his parent’s consortium, and it would be inconsistent with the existing law not to recognize such a cause of action. Pennsylvania not only recognizes that a husband has a cause of action for loss of his wife’s consortium, but also permits a wife to seek damages for loss of consortium of her husband. Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974). Spousal consortium includes society, association, companionship, comfort and affection, 1 Speiser, Recovery for Wrongful Death 2d, § 3.49, and this consortium is very similar to that between a parent and child. Therefore, a child should be permitted to recover for loss of parental consortium. Also under Pennsylvania law, a child can recover in a wrongful death action for the loss of companionship, comfort, society and guidance of a parent. Spangler v. Helm’s New York-Pittsburgh Motor Express, 396 Pa. 482, 153 A.2d 490 (1959); Pa.R.C.P. 2202. Because Pennsylvania allows a child who has been deprived of parental companionship, comfort, society, and guidance by the wrongful death of a parent to be compensated for those losses, so, too, should Pennsylvania allow children whose parents are injured to recover for the loss of those same elements of the parent-child relationship.

Carrying their affirmative argument one step further, appellants argue that denial of a child’s cause of action for loss of a parent’s consortium violates the equal protection clause of the United States Constitution. Appellants argue that whether one compares children of negligently injured parents and children of negligently deceased parents or children of accident victims and spouses of accident victims, there is no legitimate basis for denying only the children of injured parents the right to recover for loss of consortium.

In countering the traditional arguments made by those who would deny the existence of a child’s cause of action for loss of a parent’s consortium, appellants first assert that it is a poor excuse to refuse to acknowledge the cause of action based on the lack of precedent because the traditional common law view of a child as a chattel has eroded, Falco v. Pados, 444 Pa. 372, 282 A.2d 351 (1971), and Pennsylvania does not bind itself to precedents of questionable validity. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970) (abandoning the physical impact rule for tort damages); Griffith v. United Airlines, 416 Pa. 1, 203 A.2d 796 (1964) (abandoning lex loci delicto rule for choice of law); Olin Mathieson Corporation v. White Cross Stores, 414 Pa. 95, 199 A.2d 266 (1964) (abandoning interspousal immunity).

Secondly, appellants assert that the argument that a child should be denied a cause of action for loss of parental consortium because a child has no legally enforceable right to the companionship of a parent is untenable. A spouse can sue a third party tort-feasor for loss of the other spouse’s consortium even though neither spouse can obtain specific relief or monetary damages from the other spouse for failure to provide consortium. Therefore even though a child can not sue a parent for failure to provide consortium, he ought to be able to recover from a third party whose negligence interferes with the parent/child relationship. Moreover, to recover damages, one need only show interference with a reasonable expectation. McPeek v. Western Union Telegraph Co., 107 Iowa 356, 78 N.W. 63 (1899).

Thirdly, appellants argue that the concerns about remote or uncertain damages for a child’s loss of his or her parent’s consortium is not too remote or uncertain because a jury is just as capable of assessing a child’s loss of consortium damages as it is of determining the difficult issues involved in standards of care, causation, and pain and suffering which are ordinarily submitted to the jury. Similarly, a child’s recovery will not be duplicative of the parent’s own damages for the injury so long as the jury is properly instructed that the child’s claim does not include loss of financial support but only loss of companionship, society, and the other elements of consortium, and so long as the jury is instructed to consider the child’s claim for loss of consortium separately from the parent’s loss.

Next appellants contend that the arguments that recognition of a child’s cause of action for loss of parental consortium will result in multiple lawsuits and increased liability are improper considerations. Appellants argue that juries are capable of discerning the meritorious from the spurious claim and thereby can keep the floodgates of litigation from bursting. The potential increase in the number of lawsuits if children are permitted to seek damages when their parents are injured would be no different than the potential number of suits resulting from other torts involving multiple victims and could be minimized by joinder rules. The increased cost to tort-feasors due either directly to larger judgments or indirectly to higher insurance rates is irrelevant to the children’s loss and the wrong committed against them and therefore should not be considered by the court as a reason for refusing to recognize the cause of action. Niederman v. Brodsky, 436 Pa. 401, 261 A.2d 84 (1970); Flagiello v. Pennsylvania Hospital, 417 Pa. 486, 208 A.2d 193 (1965).

Finally, appellants argue it is not necessary for the court to wait for the legislature to create the cause of action. The obstacles impeding recognition of a child’s cause of action were created by the courts and therefore can be removed by the courts. Moreover, Pennsylvania courts have been willing to change rules which the legislature did not make. Id., 417 Pa. at 503, 208 A.2d at 202.

The Pennsylvania Trial Lawyers Association asserts the same arguments set forth by appellant, but enunciates several additional policy reasons why children should be permitted to have a cause of action for loss of their parent’s consortium. First, our legal system allows damages to be awarded to those who have suffered a loss or injury to help them to recover the loss or repair the injury. Although money cannot buy those elements of the parent/child relationship lost as a result of the parent’s injuries, money may be able to help the child physically and emotionally by enabling the family to hire a housekeeper who could provide some of the guidance and companionship which a parent may no longer be able to give or to provide the child with psychiatric treatment to help him or her adjust to the loss. Money damages also can be used to help such children to develop and maintain their character. The association also argues that spouses who are permitted to receive damages for loss of consortium are usually able to develop a new relationship with another adult, whereas, children, who presently are not allowed to recover for loss of a parent’s consortium, are often unable to develop a similar new relationship. Finally, the Association argues that the courts should allow children to receive an individual recovery separate from any award to the parent to ensure that the child receives the benefit of money intended to compensate him for his loss and to prevent the parent from using the money for other purposes.

B.

Appellee and the Pennsylvania Defense Institute present numerous reasons why children should not be permitted to recover for the loss of parental consortium. Initially appellee points out that if we allow claims for loss of consortium beyond those of spouses, we are likely to have claims between siblings, parents and adult children, grandparents and grandchildren, step-parents and step-children, and even between friends or colleagues. However, to sue in tort one must have a legally protected interest, and in this case the interest which is sought to be protected is a two-parent household. Because this interest is not legally protected, we should not extend to children the right to sue for loss of consortium.

Appellee also argues that the development of the common law does not require the creation of a new cause of action for children to sue third party tort-feasors for the emotional loss of consortium. Historically, the common law allowed no recovery unless there was physical harm to the person seeking damages. The common law was then expanded to allow recovery for emotional harm in the absence of physical harm if there was an intentional infliction of emotional distress. Restatement (Second) of Torts § 46. Thus the short-lived tort of alienation of affections was developed as an intentional tort. Mission v. Grossman, 329 Pa. 151, 196 A. 494 (1938). While the court has been willing to expand the common law even further to allow a party to seek damages solely for emotional harm negligently inflicted, the court has strictly limited the recovery to that for shock from the direct sensory and contemporaneous observance of an accident. It has specifically refused to augment the class of common law torts to include the negligent infliction of continuing emotional damage such as grief and bereavement. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984). The children’s claim in this case, that they have an interest in a “normal” two-parent household protected against a third party’s negligent interference, has never been recognized and is not logically related to the court’s expansion of liability for emotional injuries.

Appellee next argues that a spouse’s claim for loss of consortium must be distinguished from a child’s claim of loss of parental consortium. First, spouses have a contractual relationship, whereas the parent/child relationship is one of chance. Secondly, in a spousal relationship, there can be only one claim for loss of consortium whereas all of a parent’s children may have claims for loss of consortium. Thirdly, spouses are viewed as a united whole, and injury to one is injury to the other. The spousal relationship is also viewed as a permanent relationship whereas a parent/child relationship on the other hand, albeit biologically permanent, is not usually an emotionally-interdependent one. A parent/child relationship also differs from a spousal one because there may be after-born children who claim loss of consortium. Another distinction is that a damage award to a child for loss of consortium while a minor would be placed in a fund, the bulk of which ordinarily would not be available until the child had reached majority and presumably no longer suffered from the lack of consortium. Finally, the only reason that spousal claims for loss of consortium were expanded to allow wives to recover was because the constitution required males and females to be treated equally. There is no similar constitutional requirement of equality for all blood relatives.

Appellee argues that childrens’ claims for loss of consortium, such as the ones in this case, involve difficulties in proof and especially causation. For example, appellants’ claims are for indirect emotional harm: appellants’ claim that appellee’s negligence caused their mother to be raped which caused her to suffer emotional problems which caused a breakdown in their parent’s marriage which has adversely affected appellants emotionally. Thus not only do they not claim any physical injury, but the emotional injury they claim is causally remote.

Appellee’s next argument is that a child should not be able to recover for loss of parental consortium because a parent does not have the reciprocal right to recover for his child’s loss of consortium. Quinn v. Pittsburgh, 243 Pa. 521, 90 A. 353 (1914); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). A parent can recover only pecuniary losses, such as loss of services and medical expenses, for injury to his child. A minor child does not ordinarily pay his parent’s medical bills, and economic loss to a child is recovered in the parent’s direct claim for lost wages. Thus the reasons for allowing parents to recover pecuniary losses stemming from a child’s injury do not exist for children. It would be anomolous to allow children to recover for a loss to the parent/child relationship which the parent cannot recover.

Appellee also argues that the legislature, not the court, should establish a child’s cause of action for loss of parental consortium. The legislature is better equipped to consider and control the effect on society resulting from the creation of a new cause of action. This is evidenced by the fact that the cause of action for wrongful death, which appellants analogise to the proposed cause of action is a legislatively created one.

Finally, appellee argues that wrongful death actions are not analogous to the proposed cause of action. Wrongful death actions provide no independent cause of action to a child. Rather a child is the beneficiary of the wrongful death recovery in the same proportion as his intestacy rights. Beascoechea v. Sverdrup & Parcel and Associates, 486 F.Supp. 169 (E.D.Pa.1980). Wrongful death actions are also distinguishable because they are the only means by which a family unit can recover for loss of care and services of a deceased parent.

II.

Both appellants and appellee recognize that there is a division of authority as to whether or not a child’s cause of action for loss of consortium should be recognized. Six state courts have recognized a child’s cause of action for loss of parental consortium resulting from the parent’s tortiously-inflicted injury. Hay v. Medical Center of Vermont, 145 Vt. 533, 496 A.2d 939 (1985); Ueland v. Reynolds Metals Co., 103 Wash.2d 131, 691 P.2d 190 (1984); Theama v. City of Kenosha, 117 Wis.2d 508, 344 N.W.2d 513 (1984); Weitl v. Moes, 311 N.W.2d 259 (Iowa, 1981); Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980) and Berger v. Weber, 82 Mich.App. 199, 267 N.W.2d 124 (1978) aff’d, 411 Mich. 1, 303 N.W.2d 242 (1981). Nineteen state courts and three federal courts interpreting state law have refused to acknowledge such a cause of action. Kershner v. Beloit Corporation and Black Clawson Co., Inc., 611 F.Supp. 943 (D.Maine, 1985); Lewis v. Rowland, 287 Ark. 474, 701 S.W.2d 122 (1985); Zorzos v. Rosen, 467 So.2d 305 (Fla. 1985); Sanders v. Mt. Sinai Hospital, 21 Ohio App.3d 249, 487 N.E.2d 588 (1985); Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App. 1984); W.J. Bremer Co., Inc. v. Graham, 169 Ga.App. 115, 312 S.E.2d 806 (1983); Block v. Pielet Bros. Scrap and Metal Inc., 119 Ill.App.3d 983, 75 Ill.Dec. 515, 457 N.E.2d 509 (1983); Versland v. Caron Transport, 671 P.2d 583 (Mont.1983); Salin v. Kloempken, 322 N.W.2d 736 (Minn.1982); Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318 (1982); DeAngelis v. Lutheran Medical Center, 84 A.D.2d 17, 445 N.Y.S.2d 188 (1981), aff’d, 58 N.Y.2d 1053, 462 N.Y.S.2d 626, 449 N.E.2d 406 (1983); Hoesing v. Sears, Roebuck and Co., 484 F.Supp. 478 (D.Neb.1980); Morgel v. Winger, 290 N.W.2d 266 (N.D.1980); Hinde v. Butler, 35 Conn.Sup. 292, 408 A.2d 668 (1979); Bradford v. Union Electric Co., 598 S.W.2d 149 (Mo.App.1979); Borer v. American Airlines, Inc., 19 Cal.3d 441, 138 Cal.Rptr. 302, 563 P.2d 858 (1977); Kelly v. United States Fidelity and Guaranty Co., 353 So.2d 349 (La.App.1977); Early v. United States, 474 F.2d 756 (9th Cir.1973) (interpreting Alaska law); General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Russell v. Salem Transportation Co., Inc., 61 N.J. 502, 295 A.2d 862 (1972); Hoffman v. Dautel, 189 Kan. 165, 368 P.2d 57 (1962); Pleasant v. Washington Sand and Gravel Co., 262 F.2d 471 (D.C.Cir.1958); Jeune v. Del E. Webb Construction Co., 77 Ariz. 226, 269 P.2d 723 (1954). Not only has the overwhelming majority of courts which have addressed the issue denied a minor’s cause of action for loss of parental consortium, but since 1980 when the first state supreme court, the Supreme Judicial Court of Massachussettes, considered the issue, and stepped into the vanguard and permitted a child to recover for loss of parental consortium, only five courts have followed Massachusettes’ lead while thirteen have continued to refuse to extend the common law to include such a cause of action. Therefore, we do not find a general consensus among state courts to allow the cause of action.

III.

Several of the arguments against allowing the cause of action are unpersuasive. The emotional damages which a child suffers when a parent is injured are no more remote or uncertain than the damages for loss of spousal consortium. The possibility of double recovery can be avoided by careful jury instructions. Multiple individual claims can be avoided by requiring joinder of parties. Similarly, lack of precedent and increased litigation are irrelevant concerns assuming that the claims are inherently legitimate and legally protected or worthy of protection.

However, the arguments affirmatively asserted by appellant in favor of allowing the cause of action are also not convincing. First, to assert that the cause of action should be recognized because minors have a legally enforceable right against third parties who interfere with their familial relationships is simply to assert the conclusion to the ultimate question. Secondly, to argue that children whose parents are injured must be treated the same as children whose parents are negligently killed or as husbands and wives whose spouses are negligently injured is to misconstrue the class protected by the wrongful death statute, as well as the basis of the spousal and filial relationships.

It is improper to equate children whose parents are negligently injured and children protected by the wrongful death statute. The wrongful death statute is not so much a separation of classes of children as a distinction between the scope of a tort-feasor’s liability for causing fatal as opposed to non-fatal injuries. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318, 332 (1982). The wrongful death statute also does not create only the class of children as its beneficiaries. Rather, the class which the statute benefits is that of the spouse, children, or parents of the deceased, and any recovery must be shared in proportion to the beneficiaries’ intestate shares. 42 Pa.C.S. § 8301(b); Russell v. Salem Transportation Co., 61 N.J. 502, 295 A.2d 862, 865 (1972). Moreover, the statute allows recovery only when the child is totally and permanently deprived of all parental consortium. When a parent is injured, the child will, except in rare cases, lose only some of the elements of parental consortium and only for a limited period of time. Therefore, there is no merit to appellants’ argument that to deny children a general cause of action for loss of parental consortium due to a negligently inflicted injury to the parent violates the equal protection clause.

The difference in creation of spousal and filial relationships justifies the differential treatment between spouses and children. Spouses enter into their relationship freely and by choice and do so to bind one another together into a permanent unity. A child, however, has no control over the commencement of the parent/child relationship, and rather then trying to become one with his parents, he perpetually strives to develop from a totally dependent person to one which is entirely independent. Although both relationships involve love, companionship, affection, guidance and care, the nature of those elements, the ends which they ideally achieve, and the means by which they reach those ends is subtly but intrinsically different. Therefore, although indentical labels can be attached to the elements of the spousal relationship and the parent/child relationship, substantively the relationships are different and are not comparable.

The policy reasons advanced by the Trial Lawyers Association to support the recognition of the cause of action are, with one exception, also not persuasive. Despite the intangible nature of the loss of consortium, we do not deny that some monetary value can be placed on the loss and that monetary damages can alleviate the outward manifestations of the loss, such as the loss of services and the loss of educational training. But to argue that we must allow children to have a cause of action for loss of parental consortium because the loss of parental consortium affects the child’s character which in turn impacts on society suggests that any child raised by only one parent or by grandparents or other relatives or by a foster parent has an impaired character. It also assumes that monetary damages can directly or indirectly impart character to a child which would otherwise have been imbued by the injured parent. Good character cannot be purchased, nor is its possession limited to children who are raised by two natural or adoptive parents. Therefore, we attach little significance to the argument that creation of a child’s cause of action for loss of parental consortium will benefit society by improving the character of its youth.

Equally specious is the argument that children should have a cause of action because, unlike spouses who can recover money damages for loss of consortium, children who lose parental consortium suffer the additional problem of being unable to establish new relationships with adults. This argument, which in essence is that a husband or wife can find a new spouse if they suffer loss of consortium of their present spouse, but a child cannot as easily find a new parent, assumes that spouses are fungible and that the loss of a particular spouse’s unique consortium can be replaced simply by finding another spouse. Not only is this assumption erroneous, but even if it were true, the inability to establish a personal relationship, which by its very nature cannot be bought with money, bears no relationship to money damages for loss of consortium. This argument also attempts to compare a spousal relationship with a parent/child relationship which we have already concluded is not comparable.

We are also unpersuaded that a separate damage award for the child is necessary to avoid the parent misspending the child’s portion of the parent’s damage award. This argument assumes that presently a child is entitled to and does receive indirectly a damage award when the injured parent recovers damages for his or her injuries. At least until a right to damages for loss of parental consortium is established, the injured parent’s damages award belongs exclusively to him, and the child has no claim to any portion of the parent’s award. The jury cannot allocate part of the award to the child. Thus there is no child’s portion for the parent to misspend.

We view the question raised in this case as a policy issue of how far we will extend liability beyond the ordinary principles of negligence which limit liability to those who are immediately injured and to those for whom liability is established by some legal source other than foreseeability. Norwest v. Presbyterian Intercommunity Hospital, 293 Or. 543, 652 P.2d 318, 333 (1982). Appellants’ attempts to compare their legal entitlement to that of a person bringing a wrongful death action or of a spouse bringing a claiiñ for loss of consortium are not persuasive, and some other justification for extending liability must be established. To recognize a child’s cause of action for loss of parental consortium will certainly impact upon society through higher insurance premiums or more people carrying no insurance because of prohibitive costs. However, society may benefit if the cause of action is recognized because children of negligently injured parents will have the funds with which to replace those elements of a parent/child relationship which can be purchased, and the children’s development will not suffer from lack of economic support.

The legislature has more wide-spread resources to utilize in weighing the benefits of allowing children to have a right to recover damages for loss of parental consortium due to negligent injury and is the appropriate entity to determine if Pennsylvania will recognize a child’s cause of action for loss of parental consortium and under what circumstances. The legislature has the ability to enact legislation for wrongful injury patterned on the wrongful death statute. Concern about increased litigation and multiple claims could thereby be addressed by allowing only one action to be brought and only one recovery to be made which must be shared by some legislatively determined apportionment among a legislatively determined class of beneficiaries. The legislature is also the more appropriate branch of government to establish the suggested new cause of action because then, if it is determined that some recovery should be allowed but that the benefits of unlimited recovery is out-weighed by the cost to society, the legislature can establish a rule of law allowing partial recovery under circumstances and upon conditions which the people’s representatives have established to be fairest and most beneficial to all.

Our reluctance to judicially expand tort liability in this case is supported by Justice Flaherty’s concurring opinion in Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986). In Mazzagatti, the Supreme Court refused to extend tort liability for negligent infliction of emotional distress of a close relative who does not observe the accident but instead arrives at the scene of the accident and observes the victim a few minutes afterwards. Justice Flaherty concurred and stated:

It is illusory to believe the public does not pay for tort recoveries, or that resources for such are limitless. As it is with everything, a balance must be struck — certain limits drawn. We are, in the end, dealing with money, and that money must come from somewhere — from someone: the public pays for the very most part by increased insurance premiums, taxation, prices paid for consumer goods, medical services, and in loss of jobs when the manufacturing industry is too adversely affected. A sound and viable tort system — generally what we now have — is a valuable incident of our free society, but we must protect it from excess lest it becomes unworkable and alas, we find it replaced with something far from desirable.

Id., 512 Pa. 266, 281, 516 A.2d 672, 680 (1986) (Justice Flaherty, Concurring).

We conclude that because there is no constitutional mandate compelling us to recognize a cause of action for loss of parental consortium, because there is presently no legal basis for allowing the cause of action, because there is no general or growing consensus that such a cause of action should be established, and because to allow such a cause of action is a policy determination which can most thoroughly and representatively be considered and resolved by the legislature, we do not recognize a child’s cause of action for loss of parental consortium due to tortious interference of a third party.

Order affirmed.

BROSKY, J., files a dissenting statement.

TAMILIA, J., did not participate in the decision of this case.

BROSKY, J.,

dissenting statement:

I must respectfully dissent. Although I agree with the majority that we are not compelled to recognize a child’s cause of action for loss of parental consortium, I cannot agree with its conclusion that we should not do so. Accordingly, I would reverse the order of the court below and remand the case for appellants’ action to continue.

The majority, in essence, relies on two bases in its determination that it should deny Michael Steiner a right to be compensated for the loss of his mother’s consortium. First, it concludes that “[t]he difference in creation of spousal and filial relationships justifies the differential treatment between spouses and children.” Second, it concludes the decision whether to allow the cause of action is better left to the legislature. I find neither of these bases to be persuasive.

Assuming that the majority’s perceived distinction between the relationship of spouses and the relationship of a parent and a child exists, the majority nevertheless fails to explain why that distinction should make a difference as to which relationship is to receive protection in our courts. The majority concedes both that “[t]he emotional damages which a child suffers when a parent is injured are no more remote or uncertain than the damages for loss of spousal consortium,” and that “some monetary value can be placed on the loss [of parental consortium] and that monetary damages can alleviate the outward manifestations of the loss ...” Why then should either the fact that a child has no control over the commencement of the parent/ehild relationship or the fact that children generally strive to become independent mean that spouses should be compensated for a loss of consortium while children should not be? I see no reason why and the majority offers none.

The majority also concludes that the decision whether to allow a cause of action for loss of parental consortium is a policy determination which is best left to the legislature to resolve. I believe the majority’s position is best rebutted by reference to the case of Ferriter v. O’Connell’s Sons, 381 Mass. 507, 413 N.E.2d 690, 695 (1980), in which the Supreme Judicial Court of Massachusetts stated the following:

As for the argument that we should withhold our hand until the Legislature acts, we need only repeat: “In a field long left to the common law, change may well come about by the same medium of development. Sensible reform can here be achieved without the articulation of detail or the creation of administrative mechanisms that customarily comes about by legislative enactment____ In the end the Legislature may say that we have mistaken the present public understanding of the nature of the [parent-child] relation, but that we cannot divine or anticipate.

The lack of a broad, fully articulated system in case law is a strength, not a weakness. The gaps are not filled in all at once on an abstract, theoretical basis, but gradually, case by case, as the facts of actual cases in controversy put the choices in a real-life context. This is the very genius and vitality of the common law, and we should celebrate it and exercise our proper prerogatives. Unlike the majority, I do not believe we should shrink from our historic role.

The compensation of those who have wrongfully suffered losses is the very heart of our system of civil justice. Absent an affirmative reason why a person should not be so compensated, a cause of action should be allowed to proceed. I do not believe that the majority has advanced any such affirmative reason and I, therefore, would reverse the order of the court below and allow appellants’ action for Michael Steiner’s loss of his mother’s consortium to proceed.

      . Appellants in this action are the two minor children, Michael and Douglas Steiner. Appellants improperly characterize their parents, Anna and David Steiner, as plaintiffs in paragraphs one and five of their complaint. However, the claims of the parents, Anna and David Steiner, were raised in a separate complaint. The children’s complaint and that of the parents were consolidated in the trial court. Although the children’s complaint was dismissed on preliminary objections, the parents proceeded to trial which resulted in a jury verdict in favor of Anna for $25,000 and in favor of David for $12,500. Thus, the claims of the parents are not involved in this appeal.

      . The Pennsylvania Defense Institute also filed a brief as an amicus curiae, but unlike the Pennsylvania Trial Lawyers Association, the Defense Institute did not present oral argument.

      . This argument is apparently directed at paragraphs 16 and 18 of appellants’ complaint in which appellants do not allege injury to their relationship with either their mother or their father individually, but instead they aver that they are "suffering from the change in relationship between [their] parents affecting the normal care, comfort, and society in [their] family to which [they] are entitled to have free of the harm caused by the defendant.”

      . 42 Pa.C.S. § 8301.

      . The majority also rejects an affirmative reason for allowing appellants’ cause of action based upon a misperception of appellants’ argument. Appellants argue that a separate damage award would avoid instances where a parent might misspend the child’s portion of the parent’s damage award. This argument does not assume, as the majority believes, that the child is presently entitled to a portion of the parent’s award; it is simply a recognition that injured parents would normally spend a portion of their awards to compensate the child for the loss of consortium. The point of appellants’ argument is that since the child is not legally entitled to such a portion of the parent’s award, he may remain uncompensated for his injury. The allowance of a separate damage award for the child would assure that compensation.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    517 A.2d 1358
    In re the ESTATE OF Irene Lehman FREYE, Deceased. Appeal of EASTER SEAL SOCIETY OF ALLEGHENY COUNTY, Home for Crippled Children and Western Pennsylvania School for Blind Children (the “Charities”).
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Nov. 18, 1986.

      Pasquale D. Gentile, Jr., Pittsburgh, for appellant.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   DEL SOLE, Judge:

Irene Lehman Freye, the decedent, died on November 8, 1978. Letters Testamentary were granted to Mellon Bank, N.A. as Executor under Mrs. Freye’s Will and Codicil. Her Will and Codicil bequeathed the sum of $7,500 to each of six individuals (the Pecuniary Legatees), who are the Appellees in this case. Her residuary estate was left to three charitable organizations; the Allegheny County Society for Crippled Children and Adults, (now the Easter Seal Society of Allegheny County), the Home for Crippled Children, (now the Rehabilitation Institute of Pittsburgh), and the Western Pennsylvania School for Blind Children who are the Appellants.

This matter came before the Orphan’s Court of Allegheny County as a result of a request made by the Executor, Mellon Bank, at the time of audit, to determine whether the pecuniary legatees should receive the remaining balance of income and principal, or whether the residuary charities should be awarded the bulk of the interest. The Executor’s Petition for Disbursement states an income balance of $23,099.72 and principal in the amount of $10,371.28. The Orphan’s Court issued an Order of Court and Memorandum Opinion holding that the entire balance for distribution in Mrs. Freye’s estate, principal and income, shall be distributed to the six pecuniary legatees and that nothing shall be distributed to the residuary charities.

Exceptions were filed by the residuary charities. The Orphan’s Court En Banc, issued an Order dismissing the exceptions and affirming the Opinion and Order.

The Residuary Charities’ appeal from the trial court’s Order is now before us for disposition. In considering Appellant’s arguments, we note that our scope of review on appeal from a decree entered by the Orphan’s Court is extremely narrow; a decree will be modified only if it is not supported by competent or sufficient evidence, if an error of law has occurred, or if the trial court abused its discretion. In Re Estate of Fike, 351 Pa.Super. 380, 506 A.2d 398 (1986). With these guidelines before us, we address the arguments advanced by the parties.

The sole issue to be resolved is whether under the Probate, Estate and Fiduciaries Code, (PEFC) if the aggregate of all principal and income in an estate is insufficient to satisfy the pecuniary legacies, can there be any fund for distribution to residuary legatees.

Appellants contend that § 3543(a) and (d) of the PEFC control this case. 20 Pa.C.S.A. 3543(a) and (d) state:

(a) Pecuniary legacy. — A pecuniary legacy bequeathed in trust shall bear interest at the rate of 5% per annum from the death of the decedent until the payment of the legacy, and when not in trust shall bear interest at the rate 5% per annum from one year after the death of the decedent until the payment of the legacy.
(d) Residuary legacy or devise. — All income from real and personal estate earned during the period of administration and not payable to others shall be distributed pro rata among the income beneficiaries of any trust created out of the residuary estate.

The Appellants do not dispute that the amount of statutory interest is properly payable to the pecuniary legatees. The proper distribution of the balance of the income is in dispute. They claim that the fact that no principal remains to be distributed to the residuary beneficiaries does not mean that their interests in the income are extinguished. The pecuniary legatees claim that the excess income should be distributed to them since there is not sufficient principal in the estate to fully satisfy the pecuniary legacies given to them under Mrs. Freye’s Will and Codicil. In support of their position they assert that in a case such as this, that under the principle of abatement, 20 Pa.C.S.A. § 3543, regarding the statutory rate of interest of legacies, has no application, and 20 Pa.C.S.A. § 3541 controls. This section states:

§ 3541. Order of abatement.
(а) General Rules. — Except as otherwise provided by the will, if the assets are insufficient to pay all claimants and distributees in full, the share of distributees, without distinction between real and personal estate, shall have priority of distribution in the following order:
(1) Property specifically devised or bequeathed to or for the benefit of the surviving spouse.
(2) Property specifically devised or bequeathed to or for the benefit of the decedent’s issue.
(3) Property specifically devised or bequeathed to or for the benefit of other distributees.
(4) Property disposed of by will in the form of a general bequest of cash, stocks and bonds.
(5) Property disposed of by general devise or bequest and not included in a residuary clause.
(б) Property devised or bequeathed in a residuary clause.
(7) Property not disposed of by the will.

The Appellants cite in support of their contentions the holding of this Court in In the Matter of Trust B Under the Charles F. Passmore Agreement of Trust, 332 Pa.Super. 584, 481 A.2d 943 (1984). The Passmore Trust instrument provided: “Upon the death of settlor’s wife, the trustee shall pay from Trust B the sum of twenty-five thousand ($25,000.00), but not more than one-sixth of the total then held in Trust A and Trust B after payment of all debts, expenses and taxes in the estate of the settlor, to the Lutheran Church ... and a like amount to the Home of the Friendless....” Passmore Trust, 332 Pa.Superior Ct. at 586, 481 A.2d at 945. The trust instrument went on to provide that “the balance held in Trust B shall then be distributed equally among those of the following who survive settlor’s wife ...” and named ten persons to take the residue of Trust B, of whom only seven (7) survived settlors’s wife. Passmore Trust, 332 Pa.Superior Ct. at 586, 481 A.2d at 945. At the time for distribution, the amount in Trust B was insufficient to distribute $25,000.00 each to the Church and the Home. The lower court decreed distribution to each of them in the amount of “one-sixth of the total then held in Trust A and Trust B” along with the applicable statutory interest on each amount, according to the mandated alternative in the instrument, determining that each of them were pecuniary beneficiaries. This Court affirmed.

The Trial Court found Passmore Trust distinguishable from the case at hand in that Passmore did not involve an abatement. So long as there were funds held in Trust B, which there were, there could not be any abatement of the pecuniary gifts to the Church and the Home because of the mandated alternative “but not more than one-sixth....” Since there was no abatement in Passmore, the court’s award of statutory interest to the Appellants in that case, has no bearing on the results of the case before us.

The law is well settled that where the principal of an estate is insufficient to pay pecuniary legacies given by the testator, the deficiency must be made good so far as possible from income, as against any claim thereto by the persons otherwise entitled. Bennett’s Estate, 29 Pa.D. 148 (O.C.Phila.Co.1912). "... [T]he beneficial heirs cannot, as against the donees of definite amounts, be entitled to income or interest, upon a non-existent fund”. Garrison’s Estate, 17 Pa.D. & C. 272, 279 (1933).

A residuary legatee can demand contribution for nothing. He gets but the fragments when everyone else has been served; ... finally, if anything is left he gets it, but no abates for him because his interest is dependent and indefinite.

Butz v. Neiman, 6 Watts 85; Garrison’s Estate, 17 Pa.D. & C. 272, 278 (1933); Heilman Estate, 13 Pa.D. & C.2d 440, 442 (1958).

In this case, the legacies must abate because there are insufficient funds. The fact of no residuary estate is established with simplicity. The total combined balance of principal and income remaining in the hands of fiduciary, Mellon Bank N.A., as of its Second and Final Account dated November 13, 1984, was $33,094.13 and the total Balance for Distribution stated in the Decree of the Orphans’ Court Division was $36,094.13. Accordingly, since the pecuniary legatees are entitled to a total amount of $45,000.00 there exists a deficiency or abatement of approximately $9,000.00. Therefore, there is not any residue and as such 20 Pa.C.S.A. § 3543 regarding the interest or income on distributive shares is inapplicable. Tose Estate, 98 Montgomery County Law Reporter 97 (1974) aff'd. 482 Pa. 212, 393 A.2d 629 (1979).

In cases of this nature, the intention of the testator shall govern whenever that intention is expressly manifested, and is not in conflict with established principles of law. In Re Estate of Fike, 351 Pa.Super. 380, 506 A.2d 398 (1986); Thompson’s Estate, 229 Pa. 542, 79 A. 173 (1911). Mrs. Freye intended to leave the six pecuniary legatees $7,500.00 apiece, and then if any other money remained, those funds were to go to the residuary charities. In cases where there are insufficient assets to pay all claimants and distributees in full, the rules of abatement must be applied. Therefore, according to 20 Pa.C.S.A. § 3541, property disposed of by general devise takes before property bequeathed in a residuary clause.

The decree of the Orphan’s Court Division of the Court of Common Pleas of Allegheny County, ordering that the balance for distribution in this estate which includes principal and income, be divided between the six pecuniary legatees equally is affirmed.

Order affirmed.


author: WIEAND, Judge: CIRILLO, President Judge,

text:
    518 A.2d 266
    COMMONWEALTH of Pennsylvania v. Brian SLINGERLAND, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1986.
    Filed Oct. 9, 1986.
    Reargument Denied Dec. 15, 1986.

      Robert J. Magee, Allentown, for appellant.
    Henry Perkin, Assistant District Attorney, Allentown, for Com.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The principal issue in this appeal is whether the criminal offenses defined in 75 Pa.C.S. § 3731(a)(1) and 75 Pa.C.S. § 3731(a)(4) are “cognate” offenses for the purpose of applying Pa.R.Crim.P. 225 to the preparation of a criminal information.

At or about midnight on July 20, 1984, Brian Slingerland lost control of his motorcycle while operating it on Cetronia Road in South Whitehall Township, Lehigh County. When Tpr. Theodore Kohuth arrived at the scene of the accident, Slingerland had already been placed in an ambulance. Kohuth completed his investigation at the scene of the accident and then followed the ambulance to the Lehigh Valley Hospital Center. When he arrived shortly after 1:00 a.m. and observed Slingerland lying on a hospital gurney, he detected an odor of alcohol about Slingerland’s person and observed that Slingerland was disoriented and glassy eyed. Kohuth was of the opinion that Slingerland was under the influence of alcohol; and, therefore, he requested that a blood sample be drawn. Pursuant to this request, blood was taken from Slingerland at 1:23 a.m. and, when tested, disclosed a blood alcohol content of .13%.

Kohuth filed a criminal complaint averring that Slingerland had operated a motor vehicle while under the influence of intoxicating liquor to an extent which rendered him incapable of safe driving, in violation of 75 Pa.C.S. § 3731(a)(1). After a preliminary hearing had been held and the criminal proceedings had been returned to court, the District Attorney prepared and filed an information which alleged, in addition to a violation of 75 Pa.C.S. § 3731(a)(1), that Slingerland had operated a motor vehicle when the alcoholic content of his blood exceeded .10%, this being a violation of 75 Pa.C.S. § 3731(a)(4). Slingerland filed an omnibus pre-trial motion requesting, inter alia, that the added charge be quashed as being in violation of Pa.R. Crim.P. 225. This motion was denied. Subsequently, a jury found Slingerland not guilty of violating 75 Pa.C.S. § 3731(a)(1) but guilty of driving while his blood alcohol content exceeded .10% in violation of 75 Pa.C.S. § 3731(a)(4). Post-trial motions were denied, and Slingerland was sentenced to pay a fine of three hundred ($300) dollars and undergo imprisonment for not less than thirty (30) days nor more than six (6) months. Slingerland appealed.

He argues on appeal that the second count in the information, which charged him with violating Section 3731(a)(4), should have been quashed because it had not been included in the criminal complaint filed by the prosecuting state trooper. Pa.R.Crim.P. 225(b)(5) requires “a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint....” (Emphasis added). In Commonwealth v. Donaldson, 339 Pa.Super. 237, 239-240, 488 A.2d 639, 640-641 (1985), this Court said that Rule 225(b)(5)

does not require that the crime charged in the Information be identical to that charged in the Complaint as long as the charge is cognate to the one laid in the Complaint. Commonwealth v. Taylor, 324 Pa.Super. 420, 471 A.2d 1228 (1984); Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980); Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979); Commonwealth v. Epps, 260 Pa.Super. 57, 393 A.2d 1010 (1978).

In Wilkinson, supra, we wrote:

As stated in Commonwealth v. Cortes, 182 Pa.Super. 602, 605, 128 A.2d 155, 156 (1956), “The police and other law enforcement officers and justices of the peace who formulate the complaints are not expected to be learned in the law.” If the complaint puts the defendant on notice of the substance of the crime for which he is being charged, it is sufficient. 278 Pa.Super. at 498 n. 6, 420 A.2d at 651 n. 6.

The two counts of the formal information prepared by the District Attorney in this case charged appellant with violating different subsections of the same section of the Vehicle Code. Section 3731(a) of the Vehicle Code (75 Pa.C.S. § 3731(a)), provides as follows:

(a) A person shall not drive, operate or be in actual
physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

These offenses, we have held, are separate and distinct. See: Commonwealth v. Fry, 340 Pa.Super. 445, 490 A.2d 862 (1985). It remains to be determined, however, whether the two offenses are “cognate.”

The word “cognate” is defined in Webster’s Third New International Dictionary (1965) as “related, akin or similar esp. in having the same or common or similar nature, elements, qualities or origin....” Applying this common usage of the word, it would seem that the two subsections of 75 Pa.C.S. § 3731(a) define cognate offenses. Even though the elements of the offenses defined in subsections (a)(1) and (a)(4) are not identical, the offenses are similar in nature and spring from a common concern. The substantive nature of the offenses is clearly the same, namely the operation of a vehicle after alcohol has been consumed to a degree which renders the operator a hazard to others and to himself or herself. Subsection (a)(4) presumes that an operator with a blood alcohol content of 0.10% or greater is unfit to drive, see: Commonwealth v. Mikulan, 504 Pa. 244, 249-251, 470 A.2d 1339, 1341-1342 (1983); whereas subsection (a)(1) requires proof that the defendant was, in fact, incapable of safe driving because of an excessive consumption of alcohol. Both subsections, therefore, proscribe the same conduct: driving a motor vehicle while under the influence of alcohol. We conclude, therefore, that the criminal complaint charging Slingerland with driving while under the influence of alcohol to an extent which rendered him incapable of safe driving was sufficient to allow the District Attorney to include in the information the cognate offense of driving while the defendant’s blood alcohol content exceeded 0.10%.

In a second argument, Slingerland contends that the Commonwealth’s evidence was insufficient to show a violation of subsection (a)(4) because it failed to produce medical or other expert testimony which related his blood alcohol level of 0.13% at 1:23 a.m. to the hour of 12:00 a.m., when the accident occurred. A similar argument was made and rejected by this Court in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). There, the sole evidence of the defendant’s blood alcohol level was the result of a breathalyzer test administered two hours and forty-five minutes after the defendant had operated a motor vehicle and showing an alcoholic content of 0.12%. In response to the same argument made by appellant in the instant case, the Court said:

[W]e conclude that the Commonwealth is not required to offer evidence relating a blood alcohol test result back to the time of a vehicular offense and that the absence of expert testimony relating back a remote test result will not render the test result insufficient evidence upon which the fact-finder may convict a defendant of violating subsection 3731(a)(4) of the Vehicle Code.

Id., 353 Pa.Superior Ct. at 265, 509 A.2d at 1266 (emphasis in original). Although Slingerland’s blood alcohol content was determined as a result of a blood test rather than by a breathalyzer test, this distinction is of no consequence. It is more significant that Slingerland had been drinking over the course of the entire evening and had not consumed a large quantity of alcohol immediately before operating his motorcycle. Moreovér, Slingerland’s testimony contained an admission that while operating his motorcycle he had been able to feel the effect of the alcohol which he had consumed. The result of the blood test, when considered in the light of the foregoing evidence, was sufficient to permit the jury to find that appellant had operated his motorcycle in violation of 75 Pa.C.S. § 3731(a)(4).

The judgment of sentence is affirmed.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I dissent. The evidence was insufficient to convict the defendant of operating his motorcycle with a blood-alcohol content of 0.10% or greater in violation of 75 Pa.C.S. § 3731(a)(4). The Commonwealth offered no evidence to demonstrate how the defendant’s recorded blood-alcohol level of 0.13% an hour and a half after his accident translated into a level of 0.10% or greater at the time he was driving. Without expert testimony relating the 0.13 figure back to the time of vehicle operation, the jury did not have sufficient factual information to determine that the defendant’s blood-alcohol level was over the statutory limit when he drove. Accordingly, I would reverse the conviction and discharge the defendant.

The jury acquitted the defendant of violating § 3731(a)(1) of the Vehicle Code (driving under the influence of alcohol to a degree which renders the person incapable of safe driving), and convicted him of violating § 3731(a)(4) (driving while the amount of alcohol by weight in the blood of the person is 0.10% or greater). Therefore, the verdict necessarily depended on a finding that the percentage of alcohol in the defendant’s blood was 0.10 or greater while he was driving. The only direct evidence of the defendant’s blood-alcohol percentage was the results of a test performed on a blood sample taken about an hour and a half after the defendant had ceased to drive; they showed his blood-alcohol level then to be 0.13%.

However, because of the “commonly known fact that the per cent of blood alcohol is not static but varies constantly according to the time elapsing after initial ingestion,” Commonwealth v. Kostra, 349 Pa.Super. 89, 99-100, 502 A.2d 1287, 1292 (1985) (per Wieand, J.), there was no reliable way for the jury to determine beyond a reasonable doubt from the test results what the defendant’s blood-alcohol level was when he drove, or whether that level was 0.10% or greater. Nor did anyone observe whether the defendant at or near the time of the accident exhibited outward symptoms consistent with a certain blood-alcohol level; nor did the defendant’s own admission that he drank four or five beers in the approximately four hours before driving provide the jury with a sufficient basis to calculate the defendant’s blood-alcohol content when he drove. In short, unaided by expert testimony on the effects of alcohol consumption and its rates of absorption and dissipation in the bloodstream, the jury simply was not competent to decide what the defendant’s blood-alcohol level was when he was driving, or whether it would have been 0.10% or more ninety minutes before it registered at 0.13%.

Indeed, I find it to be self-evident that an uninstructed lay jury cannot calculate a defendant’s blood-alcohol level to within a few hundredths of a percentage point based solely on the results of a test of a sample taken a significant period of time after the fact. This Court has recognized that even the simple fact of a specified percentage of alcohol in the blood means nothing to a lay juror absent expert testimony or statutory presumption. Ackerman v. Delcomico, 336 Pa.Super. 569, 577, 486 A.2d 410, 414 (1984) (petition for allowance of appeal denied) (“Although the admission of the blood alcohol content has been condoned by this court ..., we remain skeptical as to the value of this evidence to the jury. Without explanation, the blood alcohol content has little meaning to factfinders and quite possibly great potential for resulting prejudice to the party against whom it is used.”); Commonwealth v. Guiliano, 274 Pa.Super. 419, 418 A.2d 476 (1980) (only expert witness can give opinion on relation of blood-alcohol percentage to intoxication); see also Erickson v. Municipality of Anchorage, 662 P.2d 963, 966 (Alaska Ct.App.1983) (quoting Commentary to A.R.E. 303 at 58-59) (with no expert testimony on effect of .10 blood alcohol percentage on sobriety, that fact meaningless to the average juror). How then can a lay jury be expected to extrapolate a blood-alcohol level back over time, when anyone who has ever attempted the feat knows that it cannot be done with any exactitude without reference to scientific variables that the average layman does not carry around in his head?

If the jury in this case did try to extrapolate the defendant’s blood-alcohol level from the tested level of 0.13%, what “commonly known” rates of metabolic absorption and dissipation of alcohol did it employ to make the calculation? I find it incredible to suppose that people are so generally familiar with metabolic rates that without expert testimony they could formulate a conclusion on the matter beyond a reasonable doubt. See State v. Armstrong, 236 Kan. 290, 689 P.2d 897 (1984) (peak alcohol level may occur any time from forty to seventy minutes after consumption; thereafter the system eliminates alcohol at a rate of approximately .02% per hour, varying from .006% to .04% per hour; variations arise from defendant’s tolerance to alcohol, weight, and food consumption).

In all likelihood, the jury in this case did not attempt any precise mathematical calculations, but simply assumed that the level of alcohol in the defendant’s blood was higher when he was driving than when he was tested due to the “commonly known” phenomenon that the body expels alcohol from the bloodstream over time. See Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). However, the only evidence presented on the point did not support making that assumption in this case; in fact, the evidence contradicted the assumption. According to the defendant, he finished drinking shortly before he began driving, and shortly after that he had his accident; consequently, if we indulge the equally “commonly held” notion that alcohol takes a certain amount of time to be absorbed into the blood, see Kostra, the defendant’s blood-alcohol level would still have been rising a significant period of time after his accident, and he might have been perfectly within the legal limit while he was driving.

Of course, the jury was free to disbelieve all of the defendant’s testimony about the time and amount of his alcohol consumption. See Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984) (petition for allowance of appeal granted). But that still leaves unanswered the crucial question on this appeal: how did the jury determine beyond a reasonable doubt that the defendant’s blood-alcohol level was 0.10% or more when he was driving? Obviously, without expert testimony on the issue the only way for the jury to have determined this was to guess, and a conviction based on guess or conjecture cannot stand. Griscavage; Commonwealth v. Arizini, 277 Pa.Super. 27, 419 A.2d 643 (1980).

The majority cites Commonwealth v. Speights, 353 Pa. Super. 258, 509 A.2d 1263 (1986), for the proposition that expert testimony is not necessary under § 3731(a)(4) to relate blood-alcohol test results back to the time of operation. The majority’s reliance on Speights is misplaced for two reasons. First, Speights is factually distinguishable; second, its reasoning does not hold up under analysis.

In Speights, unlike this case, there was strong contemporaneous evidence that the defendant had been intoxicated while operating his vehicle, allowing the jury to infer that his blood-alcohol level was impermissibly high at the time of operation as well as at the time he took a Breathalyzer test. Thus,

The arresting officer testified that although appellant’s car did not collide with anything, it was swerving from side to side on the road and nearly struck some parked vehicles. Furthermore, the officer stated that appellant ran a red light and did not pull over in response to the officer’s having sounded his police car siren. When appellant eventually stopped, the officer observed that appellant had bloodshot eyes and that there was a heavy odor of alcohol emanating from inside appellant’s car. In addition, the officer stated that when appellant stepped outside his vehicle, he staggered and almost fell to the ground.

Speights, 353 Pa.Superior Ct. at 259-260, 509 A.2d at 1264. Moreover, the Breathalyzer test in Speights occurred two hours and forty-five minutes after Speights had stopped driving, and the court concluded that after that much time his blood-alcohol level no doubt would be falling, not rising. Thus,

if an accused stops drinking 30 to 90 minutes before arrest, the accused’s blood alcohol content will probably be falling at the time of arrest____
... The more remote in time, the more likely that the defendant’s blood alcohol content will register lower than it was at the time he was driving.

Id., 353 Pa.Superior Ct. at 264-265, 509 A.2d at 1266-67.

In our case, by contrast, no one observed the defendant driving; the only evidence pertaining to that time period was the fact that he had an accident, which by itself was not sufficient to relate his elevated blood-alcohol level back to the time of operation. See Griscavage; Arizini. Also, there was less time between appellant’s drinking and his driving than apparently was the case in Speights, i.e., less than thirty minutes elapsed between the time appellant stopped drinking and the time he stopped driving.

This latter distinction leads into the fatal flaws in the Speights rationale itself. Speights decided, without citing any scientific evidence presented in that case, that alcohol is absorbed into the bloodstream within thirty to ninety minutes of consumption. This “fact” is simply not one which a court of law may decide as a matter of judicial notice. Cf. Rostra; Dougherty. Indeed, the lay judges of this Court are no better qualified than lay jurors to determine rates of human metabolism without guidance from an expert on the subject. Speights’s “authority” for the thirty-to-ninety-minute criterion was the plurality and concurring opinions in Schwarzbach v. Dunn, 252 Pa.Super. 454, 381 A.2d 1295 (1977) (petition for allowance of appeal denied), neither of which themselves cited any authority or evidence for the validity of that criterion. Cf. Arizini (Commonwealth presented expert testimony on body’s rate of metabolizing alcohol); Commonwealth v. Hartman, 179 Pa.Super. 134, 115 A.2d 820 (1955) (similar), rev’d, 383 Pa. 461, 119 A.2d 211 (1956). In fact, the plurality opinion in Schwarzbach went so far as to state “we regard with skepticism any evidence with attempts to relate back to a blood alcohol level at a time prior to the administering of such a test because such a test is entirely too speculative.” 252 Pa.Super. at 462, 381 A.2d at 1299 (dictum) (citing Hartman, 179 Pa.Super. 134, 115 A.2d 820 (Ross, J., dissenting)); accord, Griscavage, 336 Pa.Superior Ct. at 152 n. 5, 485 A.2d at 476 n. 5; Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (plurality opinion) (petition for allowance of appeal denied). How the Speights court transformed Schwarzbach’s “skepticism” about the validity of a relation-back test in a civil case into an endorsement of such a test for use without expert testimony in a criminal case is a mystery I cannot fathom.

Even assuming arguendo the correctness of Speights’s judge-made rule that alcohol passes into the bloodstream in thirty to ninety minutes, the Speights rationale for adopting that standard does not apply with equal force to all drunk driving cases. Speights reasoned generally that an accused benefits rather than suffers from delay in the administering of a blood test because his blood-alcohol content will be falling if he has stopped consuming alcohol thirty to ninety minutes before arrest. Of course, the fallacy of this reasoning is patent. It completely ignores the case where, as here, the testimony is that the accused did not stop drinking thirty to ninety minutes before he stopped driving, so that his blood-alcohol level may have continued to rise even after he stopped driving. Cf. Hartman, 383 Pa. 461, 119 A.2d 211 (upholding trial court’s exclusion of blood-alcohol test results where alcohol may not have been fully effective until forty minutes after defendant stopped driving); Schwarzbach (plurality opinion) (expressing skepticism about relation-back of blood-alcohol test results where driver could have consumed large quantity of alcohol shortly before driving); Commonwealth v. Mattis, 36 Pa.D. & C.3d 532 (Somerset County 1985) (finding evidence insufficient to convict of driving with blood-alcohol content of 0.10% or greater where no expert testimony relating test results back to time of operation).

The majority’s reliance on the additional evidence that Slingerland felt the effect of the alcohol while he was driving is unavailing. This admission is no more consistent with having a blood-alcohol content above .10% than with having one below that level. The jury did not convict Slingerland of driving under the influence of alcohol to a degree rendering him incapable of safe driving, so how he “felt” is relevant only insofar as it helps to fix the percentage of alcohol in his blood at the time he was driving. On that score, it is undeniable that one can “feel” the effects of alcohol before it reaches a level of .10% in the blood. This piece of evidence, even added to the totality of other evidence in the case, is just as consistent with innocence as it is with guilt; therefore there is insufficient evidence to convict Slingerland of driving with a blood-alcohol level of .10% or over. See Commonwealth v. Key, 342 Pa.Super. 31, 492 A.2d 48 (1985); Commonwealth v. Monville, 306 Pa.Super. 323, 452 A.2d 747 (1982).

The Speights holding that expert testimony is not required to relate a defendant’s blood-alcohol level back to the time of operation should be overturned because it will encourage and in many cases necessitate jury speculation. The better rule is that in a prosecution for driving with a blood-alcohol content of 0.10% or greater, expert testimony relating back the results of a remote blood-alcohol test “is indispensable to the prosecution’s case” State v. Carter, 142 Vt. 588, 592, 458 A.2d 1112, 1115 (1983) (quoting State v. Rollins, 141 Vt. 105, 110, 444 A.2d 884, 887 (1982)); accord, Commonwealth v. Gillingham, 32 Pa.D. & C.3d 37 (Somerset County 1984).

Because the defendant’s conviction was necessarily the result of jury speculation, I would reverse and discharge him from further prosecution.

      . The complaint also charged various summary offenses not here relevant.


author: POPOVICH, Judge:

text:
    518 A.2d 273
    SPANG & COMPANY v. UNITED STATES STEEL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1986.
    Filed Oct. 7, 1986.
    Reargument Denied Dec. 9, 1986.

      Debra McCloskey Barnhart, Pittsburgh, for appellant.
    Kevin P. Lucas, Pittsburgh, for appellee.
    Before BROSKY, OLSZEWSKI and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the April 16, 1985, order of the Court of Common Pleas of Butler County granting a new trial. We reverse.

Appellee, Spang & Company, brought suit against appellant, United States Steel Corporation, to recover an amount owed under contract for the processing of slag. After a non-jury trial, a verdict was entered in favor of appellant. Post-trial motions were filed, resulting in the April 16, 1985, order which stated, inter alia, “[t]he motion of Spang and Company is granted limited to a re-trial on the issue of damages as explained in the accompanying opinion.” Although appellant filed an appeal in this court, the trial court later entered an order stating the April 16, 1985, order was not a final, appealable order. Pursuant to a motion to quash, this Court requested a clarification and later held the April 16,1985, order granted a new trial and was, therefore, appealable. Pa.R.A.P. 311(a)(5).

Appellant contends the trial judge abused his discretion and committed an error of law in granting a new trial. In reaching our decision, it is critical to our determination to note that an eight day non-jury trial was held, and, after its conclusion, the trial judge filed 14 pages of findings of fact and conclusions of law before entering a verdict in favor of appellant. Among the findings of fact were the following:

50. Spang provided USS exclusive, continuous and uninterrupted slag processing service from September 1, 1961 through February 28, 1982.
51. During the entire period of service USS was only obligated to pay Spang for the specification and non-specification slag sold by USS.
52. Upon termination of the slag processing service provide [sic] Spang, the parties had agreed that Spang would be entitled to payment for all processed slag products and reclaimed scrap prepared and ready for delivery to USS.
53. USS owes Spang $2,219 per ton less the cost of loading and weighing for all processed slag in the stockpile at the Lorain Works upon the termination of Spang services on February 28, 1982.

The conclusions of law included:

12. As USS sold slag, Spang was obligated to load and weigh the slag. The cost of this service is deductible from the $2,219 per ton that USS agreed to pay Spang. The burden of proving this item of expense in computing damages rested on Spang. There is lacking, evidence upon which the Court can make this determination.
13. Evidence as to the quantity of slag available for delivery to customers of USS is not reliable due to the fact that the records offered and received counted unestimated tons of slag processed and reprocessed rather than the tonnage actually stored in the stockpile.
14. Spang has proven its cause of action but has failed to prove damages by competent evidence.
15. Proof of damages by Spang is so vague and indefinite that a verdict based thereon would be a mere guess.
16. Although the damages to which Spang is entitled may be substantial the Court cannot base its verdict on a guess.
17. The amount of profit generated for the benefit of the parties by their association at the Lorain Plant of USS is immaterial and irrelevant. The evidence of said profits has been disregarded by the Court.

The trial judge correctly stated the burden of proof as to damages rested with appellee. We have said, the “burden of proof in a contract action is upon the party alleging breach or default.” East Texas Motor Freight Diamond Division v. Lloyd, 335 Pa.Super. 464, 473, 484 A.2d 797, 801 (1984). The trial judge concluded appellee had not sustained its burden.

However, after post-trial motions were filed, the trial judge decided “justice can best be served if the trial continues on the sole issue of damages.” The trial judge specifically found appellee had no after-discovered evidence or new evidence to support the granting of another trial.

Appellee argues a trial judge has the authority to reopen the record or order additional hearings. We do not dispute this, but find such authority to be inapposite to what transpired in this case. Although appellee would have us typify this as merely a reopening of the record, this is, in reality, the granting of a new trial on the issue of damages for the sole purpose of permitting appellee to prove what it failed to prove initially. In short, we find the trial court to have erred in this matter. A retrial solely for this purpose is contrary to the basic premises of our adversarial system. The interests of justice are not served by permitting one party to have a second bite at the apple merely because the party failed to devour the apple at the first attempt.

Appellee specifically does not raise for our consideration whether it sufficiently proved its damages with the required degree of reasonable certainty. (See, Brief for Appellee, p. 26, n. 11). Rather, appellee bases its argument on the fact that since the factfinder found liability, uncertainty as to damages cannot prevent recovery. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931). However, the situation before us is not a case where recovery has been precluded simply because there was some uncertainty as to the precise amount of damages or where the breaching party shifted the loss to the injured party. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). Sufficient facts must be established at trial so that the fact-finder can assess the damages. The fact-finder in this case found the facts presented to be insufficient. We note the trial court never intimated appellant was responsible for appellee’s failure to prove damages.

This Court recently addressed the manner in which damages must be proven when it reviewed an award of compensatory and punitive damages:

Generally, under Pennsylvania law, damages need not be proved with mathematical certainty, but only with reasonable certainty, and evidence of damages may consist of probabilities and inferences. E.C. Ernst, Inc. v. Koppers Co., Inc., 626 F.2d 324 (3rd Cir.1980) on remand 520 F.Supp. 830 (W.D.Pa.1981). Although the law does not command mathematical precision from evidence in finding damages, sufficient facts must be introduced so that the court can arrive at an intelligent estimate without conjecture. Rochez Bros., Inc. v. Rhoades, 527 F.2d 891 (3rd Cir.), cert. den. 425 U.S. 993, 96 S.Ct. 2205, 48 L.Ed.2d 817 (1976). Where the amount of damage can be fairly estimated from the evidence, the recovery will be sustained even though such amount cannot be determined with entire accuracy. Massachusetts Bonding & Insurance Co. v. Johnston & Harder, 343 Pa. 270, 22 A.2d 709 (1941). It is only required that the proof afford a reasonable basis from which the fact-finder can calculate the plaintiff’s loss. Myer Feinstein Co. v. DeVincent, 151 Pa.Super. 254, 30 A.2d 221 (1943); American Air Filter Co., Inc. v. McNichol, 527 F.2d 1297 (3rd Cir.1975); G.C.S., Inc. v. Foster Wheeler Corp., 437 F.Supp. 757 (W.D.Pa.1975).

Delahanty v. First Pa. Bank, N.A., 318 Pa.Super. 90, 119, 464 A.2d 1243, 1257-58 (1983). Appellee had a duty to establish by evidence such facts as would furnish a basis for the legal assessment of damages according to some definite and legal rule and damages that are not proved are not recoverable. Cronan v. Castle Gas Co., Inc., 354 Pa.Super. 381, 512 A.2d 1 (1986).

The trial judge relied on the case of Romesberg v. Caplan Iron and Steel Co., 385 Pa. 36, 122 A.2d 53 (1956) in his decision to grant a new trial. We find this reliance to be misplaced. Romesberg, supra, involved a trespass action for the recovery of damages when a piece of equipment was partially destroyed. The trial court, as the factfinder, awarded damages which were purely a guess. The Supreme Court, after establishing the proper measure of damages, stated that where both sets of testimony on the measure of damages was “unsatisfactory,” the Supreme Court would not set the damages but would remand for a new trial on this issue. There was no contention that the injured party had failed to sustain its burden; the trial court had awarded a sum of $15,850 and the Supreme Court specified it could not say the award was excessive. 385 Pa. at 39, 122 A.2d at 54.

In the case before us, the underlying issue is payment for the processing of slag. The parties had a contractual basis relating back to 1960 which required appellant to pay appellee for the processed slag, not as it was processed, but, rather, when it was sold or reused. When the parties terminated their relationship in 1981, an inventory of processed slag remained. Appellee based its claim for payment upon its operating summaries from 1961 through 1981 which listed the difference between the amount of slag processed and the amount sold.

The trial court, however, found as a fact that these records were inaccurate for the purposes of determining the inventory slag because the figure included slag which was reprocessed and would not increase inventory. There was no evidence as to the amount of slag reprocessed over the years.

In its opinion supporting the granting of a new trial, the trial court found appellee had waived the argument that the trial court could calculate the amount of slag inventory by failing to raise this point at trial. The trial judge opined:

[F]or the first time Spang argues that from the maps, slides, photographs and brochures combined with the testimony as to the length, width and depth of the slag pile the Court could itself calculate the amount of slag in the buffer zone.
As to the Court making such a calculation U.S.S. properly maintains that,
“Spang cannot now, at the post-trial stage, make an argument which it never presented in any form whatsoever to the trial court.”

(Opinion of the trial court, 4/11/85, p. 2)

However, after discussing Romesberg, supra, the trial court concluded “[i]t is in the interest of justice and the administration of justice that the record now be re-opened and that the parties develop and present evidence that is available as to the amount of slag that [is inventory].” In 1974, our Supreme Court rejected the notion of basic and fundamental error as a basis for an appellate court to review trial errors in spite of the lack of timely objection. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974). Although Dilliplaine, supra, points to the necessity of raising an objection at trial, we find its reasoning to be applicable to the case before us where one party failed to initially sustain its burden of proof:

This process removes the professional necessity for trial counsel to be prepared to litigate the case fully at trial and to create a record adequate for appellate review. The ill-prepared advocate’s hope is that an appellate court will come to his aid after the fact and afford him relief despite his failure at trial to object to an alleged error. The diligent and prepared trial lawyer — and his client-are penalized when an entire case is retried because an appellate court reverses on the basis of an error opposing counsel failed to call to. the trial court’s attention.

457 Pa. at 257, 322 A.2d at 116.

Even though the new trial was limited to the issue of damages, we find such not to be justified under our modern system of jurisprudence, when the only basis for retrial is to prove damages and there has been no explanation for appellee’s failure to sustain its initial burden.

Order reversed.