Francis TULEWICZ, Administrator of the Estate of Jane R. Tulewicz, Deceased, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Appellee.
606 A.2d 427
Supreme Court of Pennsylvania.
March 17, 1992
Reargued Oct. 21, 1991.
Submitted Dec. 7, 1990.
Accordingly, the Order of the Superior Court is reversed.
David P. Bruton, Alfred W. Putnam, Jr., Philadelphia, for appellee.
OPINION
McDERMOTT, Justice.
By order and opinion dated March 3, 1991, this Court reversed the Superior Court‘s determination that a jury award, totalling $2,750,000.00 rendered in consolidated wrongful death and survival actions, was excessive. Within the time period prescribed by
As the record discloses the decedent, Jane F. Tulewicz, was struck by one of appellee‘s buses on January 4, 1979, and ultimately succumbed on January 16, 1979, without regaining consciousness. Letters of administration were issued to her husband, Francis Tulewicz, who filed multiple
On appeal to the Superior Court the size of the wrongful death verdict was contested, along with other issues not here relevant. The Superior Court agreed with SEPTA and entered an order granting a new trial on the damages portion of the wrongful death action. 385 Pa.Super. 665, 555 A.2d 255. We granted allocatur to determine whether the Superior Court erred in this regard and concluded that it had. Tulewicz v. SEPTA, 529 Pa. 584, 606 A.2d 425 (1991). In so stating we made reference, in footnote 4 of our opinion, to the fact that SEPTA had claimed that its damages should be limited to the statutory cap as contained in
In its petition for reargument SEPTA argued for the first time that the grant of immunity upon which it relied was not that contained in
In support of its position SEPTA has cited two of our recent decisions which involved the non-waivability of certain defenses. The first case involved the employer‘s defense of Worker‘s Compensation as a bar to an action by an employee against an employer, LaFlar v. Gulf Creek Industrial Park, 511 Pa. 574, 515 A.2d 875 (1986); the other involved the non-waivability of the protections of the Sovereign Immunity Act as stated in the case of In re Upset Sale, 522 Pa. 230, 560 A.2d 1388 (1989).
The latter case, which involved an action by a purchaser at a tax sale to recover damages against the taxing authority, is directly on point. There a property was purchased at a tax sale. However, due to the failure of the taxing authority to give proper notice to the owner, the sale was voided. The purchasers brought suit claiming damages for loss of interest on the amounts they borrowed to buy the property at the sale and were successful at both the trial court and Commonwealth Court levels. The taxing authority raised the defense of immunity for the first time in its petition for allowance of appeal, alleging therein that this defense could not be waived regardless of when it was raised. In relevant part this Court stated:
The tax claim unit has raised their governmental immunity for the first time on appeal. They claim they are not only immune but that their immunity is not waivable, even if they negligently failed to do so before. Perhaps here is one reason their immunity cannot be waived; a governmental agency cannot be put at the mercy of negligent or agreed waiver by counsel of a substantive right designed to protect its very existence. Such negligence can spread, pebble in a pond, until the governmental agency would be engulfed in a tidal wave of liability ... The defense of governmental immunity is an absolute defense, directly analogous to our holding in
workmen‘s compensation cases and is not waivable ... nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature. [Citations omitted.]
522 Pa. at 232, 560 A.2d at 1389.
Based upon our holding in In re Upset Sale, id. we must agree with SEPTA that the defense of immunity is non-waivable.6 This, however, does not end our inquiry, for appellant has argued that despite the specific grant of immunity contained in Act No. 1978-152, it is nonetheless inapplicable to metropolitan transportation authorities. It is appellant‘s position that the former statute, by its clear terms, applied only to the Commonwealth, as opposed to agencies created pursuant to authority of the Commonwealth. We disagree.
We start our analysis by noting that in Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986), we held that SEPTA, by virtue of its enabling legislation, qualifies as a Commonwealth agency. We are not being asked to revisit that question here and thus SEPTA‘S status as an agency of the Commonwealth is resolved: the question then becomes whether the now repealed statute was applicable to Commonwealth agencies.
We now turn to the competing statutes involved for an examination of their relevant terms. The relevant portion of Act 1978-152, provided:
“(a) Amount recoverable. No verdict or verdicts against the Commonwealth on actions brought pursuant to § 5110 (relating to limited waiver of sovereign immunity) arising from the same cause of action or transaction or
occurrence or series of causes of actions or transactions or occurrences shall exceed $250,000.00 in favor of any plaintiff or $1 million in the aggregate.” [emphasis supplied]
“Actions against Commonwealth Parties”
“(b) Amount recoverable. Damages arising from the same cause of action or transaction or occurrence or series of causes of action or transactions or occurrences shall not exceed $250,000.00 in favor of any plaintiff or $1 million in the aggregate.”
Section 5110 of Act No. 1978-152, in relevant part, provided:
The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the following instances only and only to the extent set forth in this section and within the limits set forth in section 5111 (relating to limitations on damages), sovereign immunity as a bar to an action against Commonwealth agencies, and their officials and employees acting within the scope of their duties, for damages arising out of a negligent act or omission ...
SEPTA next argues that if the cap is determined to apply then the recovery in this case should be limited to $250,000.00, since according to the Act under which SEPTA is seeking protection, verdicts and causes of actions arising from the same transaction or occurrence shall be aggregated and that said aggregation should not exceed the cap for “any plaintiff.”
SEPTA‘S argument is based on its characterization that there is only one plaintiff involved in this case, that being the personal representative of the estate. It is appellant‘s converse position that actions brought by relatives under the Wrongful Death Act and by the estate of the decedent under the Survival Act, are actions brought by distinct plaintiffs regardless of the fact that the same person may be championing each one. For the following reasons we reject the position tendered by SEPTA.
An action for wrongful death may be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.
By virtue of
In summary, the two actions are designed to compensate two different categories of claimants: one, the spouse and/or members of the family for their loss;9 two, the decedent through the legal “person” of her estate. Given these distinct categories and distinct classes of claimants, we are not persuaded by SEPTA‘S argument that the bringing of the two causes of action by one named person,
SEPTA next argues that delay damages pursuant to
This issue was decided in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). There we determined that
Accordingly, this matter is remanded to the trial court for proceedings consistent with this opinion.
LARSEN, J., files a dissenting opinion in which PAPADAKOS and CAPPY, JJ., join.
LARSEN, Justice, dissenting.
If the statutory limitation on damages against Commonwealth agencies were a viable issue in this case, I would
Because I find, however, that the issue of the statutory limitation on damages against Commonwealth agencies is not viable herein, I dissent. The majority, without comment, has reduced the doctrine of res judicata to a quaint anachronism; thus, henceforth, the law of res judicata need not concern courts and litigants in this Commonwealth. Conclusive and final judgments no longer exist as between parties, in that losing parties can now raise any “non-waivable” question on collateral review as well as on direct appeal.
When we granted the petition for allowance of appeal filed by appellant, Francis Tulewicz, Administrator, we denied SEPTA‘S cross-petition for allowance of appeal wherein SEPTA raised, among other matters, the issue of its waiver of the applicability of the statutory limitation on damages against Commonwealth agencies.1 SEPTA did not file an application for reconsideration of that order. Thus, as to the parties herein and the issues SEPTA raised in its cross-petition for allowance of appeal, our order was a final order. The majority opinion is misleading where it implies that SEPTA preserved the statutory limitation on damages issue after we granted allocatur in the case. Maj. op. at 428. SEPTA attempted to use this issue as a response to the excessiveness issue raised by appellant, but the issue of a
In Helmig v. Rockwell Manufacturing Co., 389 Pa. 21, 29, 131 A.2d 622, 626 (1957), cert. denied, 355 U.S. 832, 78 S.Ct. 46, 2 L.Ed.2d 44 (1957), this Court stated:
[T]he rule of res judicata is, that when a court of competent jurisdiction has determined a litigated cause on its merits, the judgment entered, until reversed, is, forever and under all circumstances, final and conclusive as between the parties to the suit and their privies, in respect to every fact which might properly be considered in reaching a judicial determination of the controversy, and in respect to all points of law there adjudged, as those points relate directly to the cause of action in litigation and affect the fund or other subject-matter then before the court.
An erroneous adjudication is res judicata in the absence of an appeal, but a void judgment is not. 20A P.L.E. Judgment § 251. If it was error to find that the statutory limitation on damages issue was waivable, that error, although regrettable, is res judicata as to SEPTA in that SEPTA did not seek this Court‘s reconsideration of that issue. If, however, this Court lacked jurisdiction of the subject matter or of the person in this controversy, then our order was null and void and subject to collateral attack at any time. See Commonwealth v. Howard, 138 Pa.Super. 505, 10 A.2d 779 (1940).
Clearly, this Court did not lack jurisdiction of the subject matter or of the person in this case. Jurisdiction refers to the competency of a court to determine controversies of the general class to which a case presented for its consideration belongs, and to bind the parties to the litigation by its adjudication, regardless of whether the court can grant the relief requested due, for example, to questions concerning a defendant‘s immunity. See In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980); Vendetti v.
The majority cites In re Upset Sale, 522 Pa. 230, 560 A.2d 1388 (1989), to support its holding that the issue raised by SEPTA herein is non-waivable. In that case, this Court analogized the governmental immunity defense to the issue of an employer‘s liability in workmen‘s compensation cases. We did not, however, find that the governmental immunity defense was a jurisdictional matter. Nor does the majority do so in the instant action.
Accordingly, as the matter does not raise a jurisdictional question, it is indisputable that SEPTA is absolutely precluded from raising the issue of its waiver of the applicability of the statutory limitation on damages against Commonwealth agencies on this collateral review. Thus, I would affirm our previous decision in the case, upholding the judgment entered by the Court of Common Pleas of Philadelphia County.
PAPADAKOS and CAPPY, JJ., join this dissenting opinion.