Civil action. On motion to dismiss complaint.
On December 20, 1951 the late Irwin Wasserman and the defendant Stanley Tannenbaum left Syracuse University in New York State to travel to their homes in Atlantic City, New Jersey. The defendant Stanley Tannenbaum was driving the automobile owned by the defendant Jeannette Tannenbaum, and while crossing the State of Pennsylvania skidded and was involved in an accident as a result of which the said Irwin Wasserman sustained
fatal injuries and died in a Binghamton, New York, hospital on the same date. He left surviving him his mother, Sadye Wasserman, and his father, Samuel Wasserman. All of the parties to this cause, including the deceased, were residents of and domiciled in this State at the time of the accident and down to the present time.
This action was instituted by Samuel Wasserman as administrator of his son's estate, having been appointed by the Surrogate for Atlantic County in New Jersey and as ancillary administrator appointed by the Register of Wills of Philadelphia County. The complaint sets forth four counts. The first count is brought by Samuel Wasserman as administrator of the estate of Irwin Wasserman for the benefit of himself and his wife as parents of the decedent, and recites the statutes of Pennsylvania under which recovery may be had on account of wrongful death. The second count is brought by Samuel Wasserman as administrator of the estate of Irwin Wasserman for the benefit of the estate, and alleges the pertinent laws of the State of Pennsylvania. The third count is brought by Samuel Wasserman as ancillary administrator of the decedent, for the benefit of himself and his wife as parents of the deceased, and the fourth count is brought by Samuel Wasserman as ancillary administrator for the benefit of the estate.
The defendants have moved to dismiss the complaint on the ground that the plaintiff has no right to maintain the action as instituted, either in his capacity as general administrator or in his capacity as ancillary administrator appointed by the Register of Wills in Philadelphia, Pennsylvania; or if he is entitled to recover in any capacity, it would be one and not both and that he must make his election.
The general rule is that the law of the place where the accident resulting in death is committed (lex loci delicti) governs the right of the action for wrongful death and also the proper party to bring the suit. In re Carpenter's Estate , 142 N.J. Eq. 772, 61 A. 2 d 446 (E. & A. 1948); Giardini v. McAdoo , 93 N.J.L. 138, 107 A. 437 (E. & A. 1919);
Morss v. Allen , 120 N.J.L. 203, 199 A. 414 (Sup. Ct. 1938). Therefore, we must look to the statutes of Pennsylvania under which recovery may be had on account of wrongful death.
In their argument the defendants claim that the plaintiff as a New Jersey administrator may not institute suit against the defendants under the Wrongful Death Act of Pennsylvania. Title 2, page 488, Rule 2202 of the Supreme Court of Pennsylvania supervenes the statutes so far as they are inconsistent therewith and provides:
"(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." (Emphasis ours.)
The defendants contend that in interpreting this rule we must take into consideration the definition of the terms used in the rules pertaining to actions for wrongful death. Pennsylvania Rule of Civil Procedure 2201, p. 488, Purdon's Pennsylvania Statutes, Appendix, Title 12 provides:
"'personal representative' means the * * * administrator * * * of the estate of a decedent duly appointed by the Register of Wills of any County of this Commonwealth."
The plaintiff contends that the defendants have not gone far enough in quoting the Pennsylvania statutes and rules in seeking an interpretation of the phrase "an action for wrongful death shall be brought only by the personal representative of the decedent." Counsel quotes Rule 2201 -- "Definitions":
"As used in this chapter 'action' means any civil action or proceeding at law brought in or appealed to any court of record which is subject to these rules.
'Action for wrongful death' means in the case of rules 2202, 2203 and 2206, an action arising under the laws of this Commonwealth and in the case of rules 2204 and 2205, an action arising under the laws of this Commonwealth or any other jurisdiction."
and the official note of the Procedural Rules Committee:
"By the provisions of the Procedural Rules Act of June 21, 1937, P.L. 1982, Section 1, 17 P.S. 61 as amended by the Act of March 30, 1939, No. 13, these rules are applicable to the courts of Common Pleas of the several counties of this Commonwealth, the County Court of Allegheny County, the Municipal Court of Philadelphia and to such courts of civil jurisdiction as may be created in the future by ...