328 MONTGOMERY COUNTY LAW REPORTER 328 (1998) ] 36 1998 MBA CIVIL PROCEDURE: Preliminary Objections - Demurer PERSONAL INJURY: Survival and Wrongful Death Actions CAPACITY TO SUE: Personal Representative of Estate Plaintiff, father of decedent brought an action on behalf of decedent and decedent s children to recover survival benefits, pain and suffering and economic losses sustained by the decedent allegedly as a result of cigarette smoking. Defendants were various tobacco companies who filed preliminary objections in the nature of a demurrer. Plaintiff s complaint was dismissed with prejudice for, among other things, plaintiff s lack of capacity to sue on behalf of the decedent or the decedent s children. 1. There are two kinds of actions which may be brought in Pennsylvania where the allegedly injured person has expired, a survival action and a wrongful death action. 2. Where a complaint is premised upon alleged damages sustained by a decedent for pain and suffering and economic losses while the decedent was alive, those damages are only recoverable under a survival action. 3. In a survival action, the decedent s estate sues on behalf of the decedent upon claims the decedent could have pursued had he not died. Accordingly, the recovery of damages flows from the cause of action the decedent possessed at the time of his death, not as a result of his death. 4. A survival claim can only be brought by the decedent s personal representative such as an administrator or executor and any amount recovered becomes a part of the decedent s estate. 5. Failure by the plaintiff to allege in his complaint his capacity to sue on behalf of the decedent s estate, constitutes a failure to state a claim upon which relief can be granted requiring dismissal of the suit. 6. Although the Rules of Civil Procedure are to be liberally interpreted, that liberal interpretation does not entail total disregard of those rules concerning pleadings. 7. A wrongful death action is appropriate to compensate relatives for damages they sustained as a result of decedent s death as opposed to a survival action which is to recover for the decedent s pain and suffering. 8. Wrongful death damages are implemented to compensate the spouse, children, or parents of the deceased for the pecuniary loss they sustained as a result of the denial of future contributions decedent would have made in his or her lifetime, as well as administrative, funeral and medical expenses. 9. Wrongful death actions can only be brought by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for that wrongful death. However, if no action for wrongful death has been brought within six (6) months after the death of the decedent, the action may be brought by a personal representative or any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share the damages.
1998 MBA MONTGOMERY COUNTY LAW REPORTER 329 [135 Montg. Co. L. R. 10. Unless plaintiff pleads his capacity as guardian of decedent s minor children, he cannot qualify as a trustee ad litem in order to bring a wrongful death lawsuit. 11. Minor children have no capacity to sue; they are dependent on their parent or guardian to bring suit on their behalf. Where a child has a parent any action must be brought by that parent as the natural guardian of the child. Since the minor children have a mother, a grandfather cannot qualify as guardian. 12. Wrongful death claims are governed by Pennsylvania s two year of statute of limitations. C. P. Montgomery County, Civil Division. No. 96-21026. Gardner R. Patricia Leisner Clements, for Gardner R. Johnson, Jr., Chancellor Johnson, Jessycah Johnson and Gardner R. Johnson, IV. John J. Haggerty, for Philip Morris Company, Inc. Peter Greenberg, for American Tobacco Company and Brown & Williams Tobacco Corporation. J. Kurt Straub, for Liggett & Myers Tobacco Company, Inc. John McKeon, Jr., for Lorillard Tobacco Company. SUBERS, J., December 23, 1997. This is an appeal from this Court s Order entered on October 31, 1997 granting the defendants, Philip Morris, Inc., Brown & Williamson Tobacco Corp. (individually and as successor by merger with defendant the American Tobacco Company), Lorillard Tobacco Company and Liggett & Myers preliminary objections and dismissing the complaint with prejudice.
330 MONTGOMERY COUNTY LAW REPORTER 328 (1998) ] 36 1998 MBA Procedural History Plaintiff, Gardner R. Johnson, Jr., commenced this action by writ of summons filed on December 2, 1996 and filed his complaint on February 11, 1997. In his complaint, the plaintiff, Gardner R. Johnson, Jr., is seeking damages allegedly sustained by his now deceased son as a result of cigarette smoking. The decedent died intestate, leaving three children, Gardner Johnson, IV, Chancellor Johnson, and Jessycah Johnson. The children live with their mother, Lillian Foreman, at 716 S. 2nd Street, Philadelphia, PA and not with the plaintiff, their grandfather, who resides at 56 Franklin Ave., Bryn Mawr, PA. Defendant, Liggett & Myers, Inc., filed preliminary objections to the complaint on March 6, 1997. The preliminary objections were in the form of a demurrer to the alleged survival action and wrongful death action. The remaining defendants, Philip Morris, Inc., Brown & Williamson Tobacco Corp. (individually and as a successor by merger with defendant the American Tobacco Company), and Lorillard Tobacco Company, filed preliminary objections raising the same issues on March 10, 1997. The plaintiff failed to respond to the first set of preliminary objections but did file a response to the second set of preliminary objections. After oral argument and review of memoranda of law, this Court properly granted the demurrer and dismissed plaintiff s complaint. Plaintiff appealed and filed a concise statement of matters complained of in conformity with 1925 (b). Discussion [1], [2], [3] In Pennsylvania, there are two kinds of actions which may be brought where the allegedly injured person has expired, a survival action and a wrongful death action. The plaintiff has failed to plead either. The plaintiff s complaint is premised on alleged damages sustained by his now deceased son, such as, his pain and suffering and economic loss. These alleged damages were sustained by the plaintiff s son prior to his death and are only recoverable under a survival action, 42 Pa. C.S.A. 8302. 1 1 8302. Survival action All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
1998 MBA MONTGOMERY COUNTY LAW REPORTER 331 [135 Montg. Co. L. R. Under the survival statute, survival damages are essentially those for pain and suffering between the time of injury and death. 42 Pa. C.S.A. 8302. The survival action has its genesis in the decedent s injury, not his death. In the survival action, the decedent s estate sues on behalf of the decedent, upon claims the decedent could have pursued but for his or her death. The recovery of damages stems from the rights of action possessed by the decedent at the time of death. Frey v. Pennsylvania Electric Co., 414 Pa. Super. 535, 607 A.2d 796, 798, (1991) appeal denied, 614 A.2d 1142 (1992). According to the damages claimed in plaintiff s complaint, the plaintiff has brought a survival action. [4], [5], [6] Under Pennsylvania Law, a survival claim must be brought by the decedent s personal representative (i.e., an administrator or executor) with any amount recovered becoming part of the decedent s estate. Kiser v. Schultze, 538 Pa. 219, 648 A.2d 1, 4 (1994); In re Estate of Pozzuolo, 433 Pa. 185, 249 A.2d 540, 544 (1969). The plaintiff s complaint does not set forth the capacity of the plaintiff to bring any action on behalf of the decedent s estate. 2 The plaintiff does not allege in his complaint that he is his deceased son s personal representative or that he has been appointed as the executor or administrator of the decedent s estate. Since only the personal representative has the right to bring an action for survival damages, Mr. Johnson s failure to plead that status is a failure to state a claim upon which relief can be granted and requires dismissal of his suit. See Maxson v. McElhinney, 370 Pa. 622, 88 A.2d 747, 749 (1952) (where plaintiff has no right to sue, she cannot state a claim 2 We recognize the proposition that the Rules of Civil Procedure are to be liberally interpreted. See, Pa. R.C.P. 126. However, liberal construction does not entail total disregard of those rules concerning pleading. Duquesne Light Co. v. U.S. Indus. Fabricators, 334 Pa. Super. 444, 447, 483 A.2d 534, 536 (1984). A purpose behind the rules of pleading is to enable parties to ascertain, by utilizing their own professional discretion, the claims and defenses that are asserted in the case. This purpose would be thwarted if courts, rather than the parties, were burdened with the responsibility of deciphering the cause of action from a pleading of facts which obscurely support the claim in question. Parties ought not be allowed to delegate their duties under the Rules of Civil Procedure to our courts. Krajsa v. Keypunch, Inc., 424 Pa. Super. 230, 622 A.2d 355, 357 (1993).
332 MONTGOMERY COUNTY LAW REPORTER 328 (1998) ] 36 1998 MBA upon which relief can be granted and dismissal is necessary). Thus, the plaintiff has no right to the damages alleged in the complaint and the complaint must be dismissed for failure to state a valid survival action. [7], [8] Furthermore, plaintiff does not address his lack of capacity to bring a survival action in his brief in opposition to the preliminary objections or in his concise statement of matters complained of. The only issue raised by the defendant is that he has right to bring a wrongful death action as trustee ad litem for his son s children. The plaintiff is attempting to bring his complaint within the purview of Pennsylvania s wrongful death statute, 42 Pa. C.S.A. 8301. The purpose of a wrongful death action is to compensate relatives for damages they sustained as a result of the decedent s death, as opposed to a survival action which is to recover for the decedents pain and suffering. As the Frey court further explained: Wrongful death damages are implemented to compensate the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime. The damages are also meant to compensate for some administrative, funeral, and medical expenses.... This action is designed only to deal with the economic effect of the decedent s death upon these specified family members. Frey v. Pennsylvania Electric Co., 414 Pa. Super. 535, 607 A.2d 796, 798 (1991). The plaintiffs complaint does not seek damages available in a wrongful death action. The only damages the plaintiff seeks are those sustained by his son prior to his death. While the complaint is brought on behalf of the decedent s children, there is no allegation of pecuniary loss or loss of companionship recoverable under the wrongful death statute, 42 Pa. C.S.A. 8301. See Manning v. Capelli, 270 Pa. Super. 207, 411 A.2d 252, 255 (1979).
1998 MBA MONTGOMERY COUNTY LAW REPORTER 333 [135 Montg. Co. L. R. [9] Even if we construe the complaint as a claim under the wrongful death statute, the complaint should be stricken for reasons similar to those mandating dismissal of the plaintiff s alleged survival claim. Pennsylvania Rule of Civil Procedure 2202 sets forth the persons entitled to bring a wrongful death statute as follows: (a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. (b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages. The plaintiff, Mr. Johnson, does not qualify under either provision. The plaintiff is not the personal representative of the decedent nor is he a person entitled to recover damages in a wrongful death action. Personal representative is a defined term under the Rules: it means the executor or administrator of the estate of the decedent duly qualified by law to bring actions. Pa. R.C.P. 2201. The plaintiff has not pled that he is the executor or administrator of his son s estate. [10], [11] The plaintiff has allegedly brought this action on behalf of the decedent s three minor children. However, plaintiff has no right to bring any civil action on behalf of the minor children because he has not pled that he is the guardian of the children. According to the definitions at Pa. R.C.P. 2026 a guardian means the party representing the interest of a minor party in any action, whether he is (a) the guardian of a minor appointed by any court of competent jurisdiction, (b) a person in the nature of a next friend selected to represent a minor plaintiff in an action, or (c) a guardian ad litem specially appointed by the court in which the action is pending. Minor children have no capacity to sue; they are dependent on their parent or guardian to bring suit on their behalf. Foti v.
334 MONTGOMERY COUNTY LAW REPORTER 328 (1998) ] 36 1998 MBA Askinas, 432 Pa. Super. 604, 639 A.2d 807, 809 (1994). Where a child has a parent; however any action must be brought by the parent, as the natural guardian of the child. Petition of Wagner, 381 Pa. 107, 112 A.2d 352 (1955); Ciaverelli v. Crime Victim s Compensation Board, 153 Pa. Commw. 639, 621 A.2d 1232 (1993). The plaintiff, grandfather, cannot qualify as a guardian. The complaint shows the minor children have a mother, Lillian Foreman, with whom they live who is not a party to the suit. Plaintiff cannot serve as the legal guardian of the children and cannot bring a wrongful death action on their behalf. [12] The plaintiff makes an unsubstantiated allegation in his concise statement of matters complained of that he is the trustee ad litem for his son s children. The plaintiff did not plead in his complaint that he was the trustee ad litem and the facts pled in his complaint do not support this baseless allegation. Even if plaintiff could act as trustee ad litem in a wrongful death action, the complaint does not reflect an intent to assert a wrongful death claim and a wrongful death claim cannot now be added by amendment. The complaint reveals that the plaintiff s son died on December 3, 1994 and a wrongful death claim is therefore barred under Pennsylvania s two-year statute of limitations for wrongful death claims. See 42 Pa. C.S.A. 5524. Conclusion Since the plaintiff has no right to bring a survival action or wrongful death action on behalf of his grandchildren as a result of his son s death, this Court properly dismissed the plaintiff s complaint with prejudice by Order dated October 31, 1997.
1998 MBA MONTGOMERY COUNTY LAW REPORTER 335 [135 Montg. Co. L. R.