J-A07041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BETTY WELLES CAMPBELL, EXECUTRIX     IN THE SUPERIOR COURT OF
OF THE ESTATE OF SAMUEL P.                 PENNSYLVANIA
CAMPBELL, SR., AND BETTY WELLES
CAMPBELL, IN HER OWN RIGHT



                v.

A.O. SMITH CORPORATION, IN ITS OWN
RIGHT AND AS SUCCESSOR IN
INTEREST TO THE CLARK CONTROLLER
COMPANY AND A.O. SMITH
CORPORATION; A.W. CHESTERTON
COMPANY; AGCO CORPORATION, AS
SUCCESSOR IN INTEREST TO ALLIS
CHALMERS CORPORATION; AIR &
LIQUID SYSTEMS CORPORATION, AS
SUCCESSOR BY MERGER TO BUFFALO
PUMPS, INC.; AJAX MAGNETHERMIC
CORPORATION; ALLIED GLOVE
CORPORATION; AMERICAN OPTICAL
CORPORATION; AMERICAN STANDARD
COMPANY, INC.; ARMSTRONG
INTERNATIONAL, INC., ARMSTRONG
PUMPS, INC.; AQUA-CHEM, INC.,
CLEAVER-BROOKS DIVISION; AURORA
PUMP COMPANY; BEAZER EAST, INC. IN
ITS OWN RIGHT AND AS SUCCESSOR TO
KOPPERS COMPANY, INC. AND OTHER
RELATED COMPANIES INCLUDING THIEM
CORPORATION, BEAZER USA, INC., AND
BEAZER, PLC; BLACKMER PUMP
COMPANY; BW/IP INTERNATIONAL INC.,
F/K/A BORG WARNER INDUSTRIAL
PRODUCTS, INDIVIDUALLY AND AS
SUCCESSOR IN INTEREST TO BYRON
JACKSON PUMPS; CASHCO, INC.;
CATALYTIC CONSTRUCTION COMPANY;
CBS CORPORATION, A DELAWARE
CORPORATION, F/K/A VIACOM INC.,
SUCCESSOR BY MERGER TO CBS
J-A07041-16


CORPORATION, A PENNSYLVANIA
CORPORATION, F/K/A WESTINGHOUSE
ELECTRIC CORPORATION; CHAMPLAIN
CABLE CORPORATION, AS SUCCESSOR
IN INTEREST TO HERCULES INC;
COLUMBUS MCKINNON;
COMMONWEALTH EDISON COMPANY;
COPES-VULCAN, INC; CRANE CO.;
CROWN CORK & SEAL COMPANY;
DEZURIK, INC.; DRAVO CORPORATION;
DURAMETALLIC CORPORATION; EATON
CORPORATION, AS SUCCESSOR IN
INTEREST TO CUTLER HAMMER, INC.
EICHLEAY CORPORATION; ELECTROLUX
HOME PRODUCTS; ELSA BENSON, INC;
EXELON CORPORATION; FLOWSERVE
U.S., INC., F/K/A FLOWSERVE FSD
CORPORATION, AS SUCCESSOR TO
DURCO INTERNATIONAL, DURIRON
COMPANY AND DURAMETALLIC; FMC
CORPORATION, INDIVIDUALLY AND ON
BEHALF OF ITS FORMER PEERLESS
PUMPS; FOSECO, INC.; FOSTER
WHEELER CORPORATION; GENERAL
CABLE CORPORATION; GEORGIA
PACIFIC CORPORATION; GENUINE
PARTS COMPANY; GOULDS PUMPS, INC;
GREENE TWEED & COMPANY; GRINNELL
LLC; HEDMAN RESOURCES LIMITED;
HONEYWELL, INC., HONEYWELL
INTERNATIONAL, INC., FORMERLY
KNOWN AS ALLIED SIGNAL, INC., AS
SUCCESSOR IN INTEREST TO THE
BENDIX CORPORATION; IMO
INDUSTRIES, INC., F/K/A IMO DELAVAL,
INC., F/K/A TRANSAMERICAN DELAVAL,
INC., F/K/A DELAVAL TURBINE, INC.,
DELAVAL TURBINE, INC., DEVALCO
CORPORATION; INDUSTRIAL HOLDINGS
CORPORATION F/K/A CARBORUNDUM
COMPANY; INGERSOLL RAND; INSUL
COMPANY, INC.; ITT CORPORATION,
F/K/A ITT INDUSTRIES; JOY
TECHNOLOGIES F/K/A JOY

                                -2-
J-A07041-16


MANUFACTURING COMPANY D/B/A JOY
MANUFACTURING COMPANY, INC;
KAISER GYPSUM COMPANY, INC.;
MALLINCKRODT US LLC, IN ITS OWN
RIGHT AND AS SUCCESSOR IN
INTEREST TO IMCERA GROUP, INC.,
AND INTERNATIONAL MINERALS AND
CHEMICAL CORPORATION, AND AS
SUCCESSOR IN INTEREST TO E.J.
LAVINO; MARLEY COOLING TOWER;
MCCANN SHIELDS PAINT COMPANY;
MCCARLS, INC.; MCJUNKIN RED MAN
CORPORATION, IN ITS OWN RIGHT AND
AS SUCCESSOR IN INTEREST TO
MCJUNKIN CORPORATION; MET-PRO
CORPORATION AND ITS DEAN PUMP
DIVISIONL METROPOLITAN LIFE
INSURANCE COMPANY A/K/A
METROPOLITAN INSURANCE COMPANY;
MILWAUKEE VALVE COMPANY; MINE
SAFETY APPLIANCE COMPANY;
MINNOTTE CONTRACTING
CORPORATION; MORGAN ENGINEERING,
IN ITS OWN RIGHT AND AS SUCCESSOR
IN INTEREST TO ALLIANCE MACHINE
COMPANY; NAGLE PUMPS, INC;
OAKFABCO, INC.; OGLEBAY NORTON
COMPANY, AND ITS DIVISION FERRO
ENGINEERING; OWENS-ILLINOIS, INC.;
PHELPS DODGE INDUSTRIES, INC;
POWELL VALVE COMPANY; POWER
PIPING; PREMIER REFRACTORIES, INC.,
F/K/A ADIENCE, INC, SUCCESSOR IN
INTEREST TO ADIENCE COMPANY, LP,
AS SUCCESSOR TO BMI, INC.; RILEY
STOKER CORPORATION; ROCKWELL
AUTOMATION, INC., IN ITS OWN RIGHT
AND AS SUCCESSOR IN INTEREST TO
ALLEN BRADLEY; SAFETY FIRST
INDUSTRIES, INC., IN ITS OWN RIGHT
AND AS SUCCESSOR IN INTEREST TO
SAFETY FIRST SUPPLY, INC.; SAINT-
GOBAIN ABRASIVES, INC., FORMERLY
KNOWN AS NORTON COMPANY;

                              -3-
J-A07041-16


SARGENT & LUNDY, LLC; SPIRAX
SARCO, INC; SQUARE D COMPANY;
TASCO INSULATION, INC., F/K/A/ THE
ASBESTOS SERVICE COMPANY; THE
ELECTRIC CONTROLLER AND
MANUFACTURING COMPANY; THIEM
CORPORATION, AND ITS DIVISION,
UNIVERSAL REFRACTORIES; TRECO
CONSTRUCTION SERVICES, INC., F/K/A
THE RUST ENGINEERING COMPANY;
TYCO FLOW CONTROL COMPANY, LLC AS
SUCCESSOR IN INTEREST TO CROSBY
VALVE; UNIFRAX CORPORATION F/K/A
CARBORUNDUM; UNION CARBIDE
CORPORATION AND ITS LINDE
DIVISION; UNITED CONVERYOR
CORPORATION; UNITED STATES STEEL
CORPORATION; WASHINGTON GROUP
INTERNATION, F/K/A RAYTHEON
ENGINEERS AND CONTRACTORS, INC.,
AND ALL ITS DOMESTIC SUBSIDIARIES,
INCLUDING THE BADGER COMPANY,
INC., WHITING CORPORATION; YARWAY
CORPORATION; YEOMANS CHICAGO
CORPORATION, IN ITS OWN RIGHT AND
AS SUCCESSOR IN INTEREST TO
MORRIS PUMPS, INC., ZURN
INDUSTRIES, INC., A/K/A ERIE CITY
IRON WORKS

APPEAL OF: MARK CAMPBELL, SAMUEL
CAMPBELL JR., THOMAS CAMPBELL,
CHRISTINE NOONAN AND DEBORAH
SULLIVAN

                                                   No. 663 WDA 2015


                      Appeal from the Order April 2, 2015
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD-11-025382


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.


                                    -4-
J-A07041-16



MEMORANDUM BY JENKINS, J.:                            FILED APRIL 25, 2016

        Appellants Mark Campbell, Samuel Campbell, Jr., Thomas Campbell,

Christine Noonan, and Deborah Sullivan1 appeal from the order of the Court

of Common Pleas of Allegheny County holding that Betty Welles Campbell is

the only compensable wrongful death beneficiary in the underlying asbestos

action. After careful consideration, we affirm.

        In 2011, after receiving a diagnosis of malignant mesothelioma in

August 2010, Samuel Campbell, Sr. (“Decedent”) instituted an asbestos

action against two dozen manufacturers of asbestos-containing products

(“asbestos action”).2      Decedent died testate on May 10, 2012, leaving his

entire estate to his wife, Betty Welles Campbell (“Widow”). In June 2012,

Widow was appointed executrix of Decedent’s estate.             An amended

complaint in the asbestos action then substituted Widow for Decedent as

plaintiff and added a wrongful death claim.

        In addition to Widow, Decedent was survived by five adult children:

Mark Campbell, Samuel Campbell, Jr., Thomas Campbell, Christine Noonan,




____________________________________________


1
    Intervenors in the underlying asbestos action.
2
   This matter’s caption lists all defendants from the underlying matter
followed by a notation that this is an appeal filed by Appellants, who are
Decedent’s children.




                                           -5-
J-A07041-16



and Deborah Sullivan (“Children” or “Appellants”).3 The amended complaint

in the asbestos action named Widow and Children as wrongful death

beneficiaries.    Widow failed to provide Children with notice of either the

wrongful death claim or the probate of Decedent’s estate.

       The asbestos action settled on September 19, 2012.4 The estate took

control of all settlement proceeds without dividing or otherwise allocating

them between the estate’s survivorship action and the death beneficiaries’

wrongful death action.

       Widow later learned Children intended to bring an asbestos-based

lawsuit in Illinois.      In March 2014, Widow, through counsel, informed

Children of the prosecution and resolution of Decedent’s asbestos action. In

May 2014, Widow offered to arrange a hearing before a judge to determine

whether Children were death beneficiaries entitled to take in the wrongful

death settlement amounts. Children did not respond, but instead filed suit




____________________________________________


3
  Widow was Decedent’s second wife. All Decedent’s children were the result
of his first marriage. A sixth child, a son named Michael, predeceased
Decedent.
4
  During his lifetime, Decedent had settled with, and received settlement
funds from, two of the twenty-four (24) defendants in the asbestos action.
The remaining twenty-two (22) defendants settled after Decedent’s death,
with the final defendants settling on September 19, 2012, the eve of trial.
The lawsuit was not discontinued at that time, however, as additional
motions continued to be filed for more than a year regarding the
settlements.



                                           -6-
J-A07041-16



against Widow and her counsel in Blair County, Pennsylvania, in September

of 2014.

       Thereafter, in Allegheny County, Widow filed a Petition to Approve

Settlement of Wrongful Death and Survival Action and for Allocation of

Settlement Proceeds (“settlement petition”) to determine, inter alia, whether

Children qualified as wrongful death beneficiaries.   On December 9, 2014,

the trial court held a hearing on the settlement petition.   Widow, Widow’s

counsel, and two of the Children testified. Children requested the trial court

leave the record open to allow for the submission of additional testimony

from the remaining Children to be taken by deposition.        The trial court

granted the request, and the testimony of the remaining Children was taken

by deposition on January 15, 2015.

       On February 17, 2015,5 Children filed cross-petitions to strike the

settlement petition and to remove Widow as the plaintiff in the underlying

asbestos action.

       On February 24, 2015, Children filed an additional action in Blair

County seeking the removal of Widow as executrix of Decedent’s estate.




____________________________________________


5
  Although Children actually filed their cross-petitions on March 31, 2015, on
March 12, 2015, the trial court entered an order instructing that the cross-
petitions, when filed, would be listed as filed on February 17, 2015, nunc pro
tunc.




                                           -7-
J-A07041-16



        On February 27, 2015, Widow filed a motion in Allegheny County

pursuant to Pa.R.C.P. 213.16 to consolidate the Allegheny and Blair County

actions and stay the Blair County action. On March 10, 2015, the trial court

granted the motion, consolidating the actions and staying the Blair County

action.

        On April 2, 2015, the trial court granted the settlement petition,

holding that Widow was the only wrongful death beneficiary entitled to

recover from the wrongful death claim proceeds in this matter.7            Children

appealed on April 23, 2015.

        Children purport to raise the following three claims for review:

        1. Whether the [t]rial [c]ourt can entertain a wrongful death
        petition for a case marked settled when funds have already been
        disbursed to [Widow], lien holders and her attorneys?
____________________________________________


6
    PaR.C.P. 213.1 provides as follows:

        (a) In actions pending in different counties which involve a
        common question of law or fact or which arise from the same
        transaction or occurrence, any party, with notice to all other
        parties, may file a motion requesting the court in which a
        complaint was first filed to order coordination of the actions. Any
        party may file an answer to the motion and the court may hold a
        hearing.

        (b) The court in which the complaint was first filed may stay the
        proceedings in any action which is the subject of the motion.

Pa.R.C.P. No. 213.1.
7
  The order also apportioned 85% of the asbestos recovery to the estate’s
survival claim and 15% to the wrongful death claim.




                                           -8-
J-A07041-16


       2. Whether an executor of an estate should be removed when
       she fails to give notice of probate of the estate, notice of a
       wrongful death and survival action and notice of the settlement
       of a wrongful death action to beneficiaries?

       3. Whether it is sufficient to show loss of services,
       companionship, comfort, society and guidance to be entitled to
       share in damages for wrongful death?

Children’s Brief, p. 4.

       This Court’s standard and scope of review in an appeal from a non-jury

verdict is as follows:

       Our appellate role in cases arising from non-jury trial verdicts is
       to determine whether the findings of the trial court are
       supported by competent evidence and whether the trial court
       committed error in any application of the law. The findings of
       fact of the trial judge must be given the same weight and effect
       on appeal as the verdict of a jury. We consider the evidence in a
       light most favorable to the verdict winner. We will reverse the
       trial court only if its findings of fact are not supported by
       competent evidence in the record or if its findings are premised
       on an error of law.

J.J.   DeLuca    Co.      v.   Toll   Naval   Associates,   56   A.3d   402,   410

(Pa.Super.2012) (citation omitted). Further,

       [w]e will respect a trial court’s findings with regard to the
       credibility and weight of the evidence unless the appellant can
       show that the court’s determination was manifestly erroneous,
       arbitrary and capricious or flagrantly contrary to the evidence.

Id. (citation omitted).

       Initially, Children argue the trial court erred by entertaining the

settlement petition because the matter was effectively discontinued and

therefore could be re-opened only by a petition to strike off the



                                         -9-
J-A07041-16



discontinuance pursuant to Pa.R.C.P. 229(c).8 See Children’s Brief, pp. 17-

21.     Otherwise stated, Children argue that, because Widow had already

received all and distributed some settlement funds from the asbestos action,

there was nothing for the trial court to approve, and so the matter was

discontinued. Id. This is incorrect.

        In relevant part, the Probate, Estates, and Fiduciaries Code states as

follows:

        § 3323. Compromise of controversies

        (a) In general.--Whenever it shall be proposed to compromise
        or settle any claim, whether in suit or not, by or against an
____________________________________________


8
    Pa.R.C.P. 229 provides:

                             Rule 229. Discontinuance

        (a) A discontinuance shall be the exclusive method of voluntary
        termination of an action, in whole or in part, by the plaintiff
        before commencement of the trial.

        (b)(1) Except as otherwise provided in subdivision (b)(2), a
        discontinuance may not be entered as to less than all defendants
        except upon the written consent of all parties or leave of court
        upon motion of any plaintiff or any defendant for whom plaintiff
        has stipulated in writing to the discontinuance.

        (2) In an action governed by Rule 1042.3, a plaintiff may enter a
        discontinuance as to a defendant if a certificate of merit as to
        that defendant has not been filed.

        (c) The court, upon petition and after notice, may strike off a
        discontinuance in order to protect the rights of any party from
        unreasonable inconvenience, vexation, harassment, expense, or
        prejudice.

Pa.R.C.P. 229.



                                          - 10 -
J-A07041-16


        estate, or to compromise or settle any question or dispute
        concerning the validity or construction of any governing
        instrument, or the distribution of all or any part of any estate, or
        any other controversy affecting any estate, the court, on petition
        by the personal representative or by any party in interest setting
        forth all the facts and circumstances, and after such notice as
        the court shall direct, aided if necessary by the report of a
        master, may enter a decree authorizing the compromise or
        settlement to be made.

        (b) Pending court action.--

           (1) Court order.--Whenever it is desired to compromise
           or settle an action in which damages are sought to be
           recovered on behalf of an estate, any court or division
           thereof in which such action is pending and which has
           jurisdiction thereof may, upon oral motion by plaintiff’s
           counsel of record in such action, or upon petition by the
           personal representative of such decedent, make an order
           approving such compromise or settlement. Such order may
           approve an agreement for the payment of counsel fees and
           other proper expenses incident to such action.

20 Pa.C.S. § 3323. Therefore, court approval and apportionment of funds

between survival and wrongful death claims is required to finalize settlement

of these claims, regardless of agreement and/or payment of funds.              See

Schuster v. Reeves, 589 A.2d 731, 734-35 (Pa.Super.1991) (court

approval needed for settlement and apportionment of survival and wrongful

death    claims);   see   also   Moore    v.    Gates,   580   A.2d   1138,    1142

(Pa.Super.1990) (same).

        Contrary to Children’s assessment of the facts, at the time of the

settlement petition, this matter was not discontinued and was indeed




                                       - 11 -
J-A07041-16



ongoing, despite the fact that settlement funds had been received, and a

disbursement had been made to a statutory lien holder.9 Widow currently

holds the balance of the settlement funds in escrow pending the outcome of

Children’s wrongful death claims.          Accordingly, if Children were entitled to

portions of the wrongful death settlement funds, which they are not as

discussed infra, the funds exist and remain undisbursed.                    Therefore, the

trial court had jurisdiction to approve and apportion the asbestos settlement

proceeds without need for a Pa.R.C.P. 229(c) petition to strike off

discontinuance.10

        The crux of the instant matter is Children’s third claim concerning

whether the trial court properly ruled Children were not entitled to any

portion    of   the   wrongful    death        beneficiary   portion   of   the   asbestos

settlements.

        A survival action under 42 Pa.C.S. § 8302 involves the prosecution of a

suit by the decedent’s estate, to benefit the estate, against tortfeasors for

claims that the decedent could have pursued during his/her lifetime.                  See

Frey v. Pennsylvania Elec. Co., 607 A.2d 796 (Pa.Super.1992). On the

other hand, wrongful death claims under 42 Pa.C.S. § 8301 allow certain

designated relatives of the decedent to recover for personal damages
____________________________________________


9
    The Department of Veterans’ Affairs was paid for medical care.
10
   Thus, the trial court’s April 2, 2015 order was not an “advisory opinion,”
as Children termed it. Children’s Brief, pp. 20, 21.



                                          - 12 -
J-A07041-16



resulting from the decedent’s death.      See Guiton v. Pennsylvania Nat.

Mut. Cas. Ins. Co., 447 A.2d 284 (Pa.Super.1982).            An estate executrix

may bring both survival actions on behalf of the estate and wrongful death

actions on behalf of herself and enumerated individuals.

      Under the Pennsylvania wrongful death statute, recovery passes to a

limited group of beneficiaries, as defined by the statute:

      § 8301. Death action

      (a) General rule.--An action may be brought, under procedures
      prescribed by general rules, to recover damages for the death of
      an individual caused by the wrongful act or neglect or unlawful
      violence or negligence of another if no recovery for the same
      damages claimed in the wrongful death action was obtained by
      the injured individual during his lifetime and any prior actions for
      the same injuries are consolidated with the wrongful death claim
      so as to avoid a duplicate recovery.

      (b) Beneficiaries.--Except as provided in subsection (d), the
      right of action created by this section shall exist only for the
      benefit of the spouse, children or parents of the deceased,
      whether or not citizens or residents of this Commonwealth or
      elsewhere. The damages recovered shall be distributed to the
      beneficiaries in the proportion they would take the personal
      estate of the decedent in the case of intestacy and without
      liability to creditors of the deceased person under the statutes of
      this Commonwealth.

      (c) Special damages.--In an action brought under subsection
      (a), the plaintiff shall be entitled to recover, in addition to other
      damages, damages for reasonable hospital, nursing, medical,
      funeral expenses and expenses of administration necessitated by
      reason of injuries causing death.

      (d) Action by personal representative.--If no person is
      eligible to recover damages under subsection (b), the personal
      representative of the deceased may bring an action to recover
      damages for reasonable hospital, nursing, medical, funeral
      expenses and expenses of administration necessitated by reason
      of injuries causing death.

                                     - 13 -
J-A07041-16



42 Pa.C.S. § 8301.

     An action for wrongful death benefits pursuant to Section 8301(b)

belongs to designated relatives and exists only for their benefit.        See

Pisano, 77 A.3d at 657 (citing Moyer v. Rubright, 651 A.2d 1139, 1141

(Pa.Super.1994)).    Such claims are not derivative of the decedent’s rights

and do not belong to the estate. Id.

     Our Supreme Court has made clear that, for an enumerated wrongful

death beneficiary to recover on a wrongful death claim, the beneficiary must

suffer a pecuniary loss.   See Gaydos v. Domabyl, 152 A. 549, 551-552

(Pa.1930).

     Pecuniary loss has been defined to be a destruction of a
     reasonable expectation of pecuniary advantage from the
     deceased. It is not a matter of guess or conjecture, but must be
     grounded on reasonably continuous past acts or conduct of the
     deceased[.]

     The reasonable expectation of pecuniary advantage to one
     standing in the family relation may be shown in many ways, but
     more frequently through services, food, clothing, education,
     entertainment, and gifts bestowed; to be reasonable, the
     services and gifts must have been rendered with a frequency
     that begets an anticipation of their continuance; occasional gifts
     and services are not sufficient on which to ground a pecuniary
     loss[.]

Gaydos, 152 A. at 552. An adult may recover as well as a minor. In re

Estate of Wolfe, 915 A.2d 1197, 1200 (Pa.Super.2006) (citing Gaydos,

152 A. at 553).      However, while a minor child is presumed to suffer

pecuniary loss, an adult child must provide evidence of a pecuniary loss. Id.




                                    - 14 -
J-A07041-16



      “[G]ifts can establish the existence of pecuniary loss as long as they

are given with sufficient consistency to establish that they would have

continued.” Estate of Wolfe, 915 A.2d at 1202.

      This Court has succinctly distilled these wrongful death recovery

pronouncements as follows:

      1) an adult child suffering pecuniary loss from the death of a
      parent can recover his or her intestate portion of the proceeds of
      the wrongful death action; 2) the adult child is not required to
      live at home to recover those proceeds; and 3) pecuniary loss
      can be established by the existence of gifts and services from
      the decedent to the adult child if those gifts or services are
      rendered with sufficient frequency that it is reasonably certain
      that they would have continued had the parent not died.

Estate of Wolfe, 915 A.2d at 1200.

      Following these pronouncements, this Court has ruled that an adult

child who did not live with the decedent but maintained a close relationship

and proved a consistent and continuing stream of financial benefits, support,

and gifts was entitled to receive his/her intestate share of wrongful death

claim proceeds. See Estate of Wolfe, 915 A.2d at 1201-03.

      Here, the record reflects the following as to each of the Children:

  •   Mark Campbell received no financial support from Decedent from 2000

      forward. He did not see Decedent after the diagnosis of mesothelioma

      because, as Mark testified, his father did not want to see him. Mark

      was estranged from Decedent to the point that Decedent did not invite

      Mark to his wedding.     Mark did not go and see Decedent the final

      Thanksgiving before his death, despite Decedent having travelled to

                                    - 15 -
J-A07041-16



         Chicago, where Mark lives.        Mark further testified that the extent of

         advice Decedent gave him was limited to subjects such as his home,

         garden, and relationships, and that Mark had no expectation of such

         advice   continuing   but   for   Decedent’s   death,   as   Decedent   had

         effectively disowned him.

     •   Christine Noonan testified at the December 9, 2014 hearing that she

         had an excellent relationship with Decedent and that the two spoke on

         the phone every other day.         She admitted, however, that Decedent

         had never helped her financially. She further testified that she did not

         have a close bond with her father after his marriage to Widow.

         Following the hearing, Christine gave a short deposition in which she

         again described her relationship with Decedent and explained that she

         missed him.11

     •   Debbie Sullivan testified to a close relationship with her father, but did

         not provide any examples of gifts or services she received from

         Decedent. The only example of advice Decedent gave her was advice

         about her children.




____________________________________________


11
  Widow testified that Christine’s primary concern in speaking to Decedent
was often the life insurance policy she had taken out on Decedent with
herself as beneficiary. Christine acknowledged a life insurance policy, but
explained that the 16 years of $110 monthly premium exceeded her
expected payout on the policy.



                                           - 16 -
J-A07041-16



     •   Samuel Campbell, Jr. testified he has lived in Arizona since 1998 and

         that, since that time, he did not once visit Decedent, and Decedent

         never visited him in Arizona.         His testimony further revealed that,

         despite alleging a close relationship with Decedent, he may have only

         seen his father a handful of times between his mother’s death in 1993

         and his father’s death in 2012. Sam Jr. alleged to have spoken on the

         phone with Decedent roughly once every month or two, discussing

         subjects including weather, camping, hunting, fishing, work, and

         grandchildren.12

     •   Thomas Campbell testified he did not visit Decedent once after his

         mesothelioma diagnosis. He testified Decedent provided him with no

         financial support or gifts, not even Christmas gifts, and never had.

         Tom testified that his relationship with Decedent centered around their

         shared interest in hunting and fishing and their shared experience as

         Marines. Tom testified that his father had instilled a good work ethic

         in him. He stated his most memorable vacations were with his father,

         but that those had occurred in the 1980s.

         The trial court found Children did not prove pecuniary loss and that

Widow was the only wrongful death beneficiary entitled to take from the
____________________________________________


12
   Widow testified the extent of the contact between the two over the final 5
years of Decedent’s life consisted of approximately three phone calls
initiated by Decedent to Sam Jr. She further testified that she believed this
estrangement stemmed from bad blood from Sam Jr.’s youth.



                                          - 17 -
J-A07041-16



wrongful death claim. See Findings of Fact and Conclusions of Law, April 2,

2015, pp. 4-6. The trial court further found that Decedent did not provide

the Children, who are each over 50 years old and who live outside

Decedent’s home, with “financial support, gifts, services, or any kind of

pecuniary advantage with any kind of frequency[,]” and certainly not to a

point that evidenced they had any expectation of continued future benefit.

Id. In fact, only one child – Debbie Sullivan – established any consistent

contact    with   Decedent,      but   that    contact   was   limited   to   telephone

conversations and “conversational snippets” that the trial court determined

“[did] not come close to establishing ‘pecuniary loss’ under the Wrongful

Death Act.” Id. at 5.

       In short, after holding a hearing and receiving additional testimony on

the matter, the trial court concluded that Children had been completely

independent, and in one case admittedly estranged, from their father for

years.13 As a result, the trial court found Children had not proven pecuniary

loss required for an enumerated wrongful death beneficiary to share in the

proceeds of a wrongful death claim.14               The trial court’s findings are

supported by competent evidence and are not premised on an error of law.15
____________________________________________


13
   The fact that Decedent’s will favored Widow over Children only furthers
this conclusion.
14
  Children correctly note that recovery under the wrongful death statute is
not dependent on the wishes of the deceased in a will or otherwise. See
Children’s Brief, p. 31. The truth of this proposition does not save Children’s
(Footnote Continued Next Page)


                                          - 18 -
J-A07041-16



      Children’s       remaining     claim,      their   second,   is   ancillary   to   the

determination regarding their entitlement to the wrongful death claim

proceeds.    They claim they were entitled to notice of the wrongful death

claims and the probate of the estate, and that they were wronged by

Widow’s failure to provide such notices. Children claim that the trial court

should have removed Widow as the wrongful death claim plaintiff and

sanctioned both Widow and her counsel for the “egregious violations of the

laws and rule” that “have gone entirely unpunished[,]” and which represent

“the height of prejudice and unfairness.” Children’s Brief, p. 18. Children

are incorrect.

      “Our standard of review of issues concerning sanctions is one of abuse

of discretion by the trial court.”         ACE Am. Ins. Co. v. Underwriters at

Lloyds & Companies, 939 A.2d 935, 945 (Pa.Super.2007), aff’d, 971 A.2d

1121 (Pa.2009).

                       _______________________
(Footnote Continued)

claim, however. To recover on a wrongful death claim, Children still must
prove pecuniary loss, which they failed to do.
15
    Children rely on Rettger v. UPMC Shadyside, 991 A.2d 915
(Pa.Super.2010), for the proposition that pecuniary loss is not to be equated
with financial dependence. See Children’s Brief, pp. 34-35. Rettger
involved an award of wrongful death benefits to parents of a 24-year old son
with whom, in addition to receiving actual services from, they had a
profound relationship beyond anything any of the Children maintained with
Decedent. Thus, to the extent Rettger can be properly read as allowing
wrongful death recovery based on losses beyond, or differing from, strict
financial dependence, the case is readily, easily, and wholly distinguishable
from the relationships involved in the instant matter.



                                           - 19 -
J-A07041-16



       Indeed, Children are correct that Widow should have timely notified

them about the prosecution of the wrongful death claims. Widow concedes

as much. See Widow’s Brief, p. 31. However, as discussed supra, Children

were not entitled to share in the proceeds of the wrongful death claim.

Consequently, Widow’s failure to notify Children of the claim was harmless.

Accordingly, the trial court did not err in declining to accede in Children’s

request to remove Widow as plaintiff in the wrongful death action. Likewise,

the trial court did not abuse its discretion by declining to impose sanctions

on Widow or her counsel for this admitted error.16

       For the foregoing reasons, we affirm the order of the Court of Common

Pleas of Allegheny County holding that Betty Welles Campbell is the only

compensable wrongful death beneficiary in the underlying asbestos action.

       Order affirmed.




____________________________________________


16
   To the extent Children sought similar sanctions for Widow’s failure to
notify them of the probate of Decedent’s estate, the instant matter is not a
probate challenge and this claim is not before us. Even if properly before us,
the claim lacks merit. First, notice was not required because Blair County
probate procedures do not require the notification of possible intestate heirs
in this scenario. Second, Decedent’s will expressly left his entire estate to
Widow. Children could have only taken under the will if Widow predeceased
Decedent, which she did not. Accordingly, Widow’s failure to notify Children
of the probate of the estate was harmless error, if it was error at all.



                                          - 20 -
J-A07041-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2016




                          - 21 -
