UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 25, 1968.
RUTH GREENE, ADMINISTRATRIX, D.B.N. OF THE ESTATE OF TIMOTHY U. BASTI, DECEASED, APPELLANT,
DOMINIC F. BASTI, APPELLEE
Hastie, Freedman and Van Dusen, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal asks reversal of a district court order granting a Motion to Dismiss this Wrongful Death and Survival suit which was brought for the death of an unemancipated minor child allegedly caused by his father's negligence. The appellant is the administratrix of Timothy U. Basti, a deceased minor, who died as a result of an automobile accident September 28, 1965. The appellee, defendant below, is Dominic F. Basti, father of the deceased minor and driver of the automobile that left the road with fatal results for his minor son. Maria C. Basti, mother of the deceased minor and wife of Dominic, was originally administratrix of her son's estate, having been granted letters on December 9, 1965. However, approximately five months later, on May 18, 1966, Maria C. Basti petitioned to resign, and the present administratrix, d.b.n., Ruth Greene, was appointed June 1, 1966. Greene, a citizen of New Jersey, filed a complaint in the court below on June 13, 1966, against the decedent's father, a citizen of Pennsylvania. Approximately a month later, Maria C. and Dominic F. Basti were divorced by a decree granted on July 12, 1966.
Since the jurisdiction of the court is founded on diversity,*fn1 Pennsylvania law controls our decision, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), and our determination should be that of the Pennsylvania Supreme Court in a similar case, King v. Order of United Commercial Travelers of America, 333 U.S. 153, 161, 68 S. Ct. 488, 92 L. Ed. 608 (1948). The court below dismissed the appellant's cause of action under both the Wrongful Death Act (12 P.S. § 1602 ff.) and the Survival Act (20 P.S. § 320.601) which will be discussed in that order.
I. Wrongful Death Action (12 P.S. § 1602 ff.)
The court below granted the appellee's motion to dismiss the Wrongful Death Action on the theory that the suit was barred by the interspousal immunity which prevents the wife, Maria, from suing the husband, Dominic. Furthermore, the court added, the suit was likewise barred by the doctrine of imputed negligence, the husband's negligence in causing his son's death being attributable to the wife and preventing her recovery of any damages. For the reason given below we think the lower court correctly followed the Pennsylvania law in dismissing the Wrongful Death Action.
As a statutory right, a Wrongful Death Action gives a potential recovery to the decedent's dependents as against a tort-feasor causing the death. The recovery belongs directly to the applicable members of the statutory class notwithstanding the fact that the action is brought for them by the decedent's personal representative. Funk v. Buckley & Co., 158 Pa.Super. 586, 45 A.2d 918 (1946). Legal infirmities of those who sue for Wrongful Death such as contributory negligence or a release are valid defenses against them, e.g., Burns v. Goldberg, 210 F.2d 646 (3d Cir. 1954); Schetter v. United States, 136 F. Supp. 931 (W.D.Pa.1956).
That the Pennsylvania doctrine of imputed negligence serves as such a valid defense for Dominic Basti in this case is clear from the decision in Parks v. Parks, 390 Pa. 287, 135 A.2d 65, 74 (1957), citing Connelly v. Kaufmann & Baer Company, 349 Pa. 261, 37 A.2d 125 (1944). In Parks v. Parks, part of the claimed recovery was for a husband-father suing, in his own right, the wife-mother for damages suffered as a result of injuries to the child. As an alternative ground for holding the father unable to sue, the court held that the mother's negligence, alleged by the father, was a bar to the father's suit. The Pennsylvania courts would apply this rule to this case. See also e.g., Darbrinsky v. Pennsylvania Co., 248 Pa. 503, 94 A. 269 (1915); Riesberg v. Pittsburgh & Lake Erie Railroad Company, 407 Pa. 434, 180 A.2d 575 (1962).*fn2
As an alternative defense to the Wrongful Death Action, the Pennsylvania Supreme Court's rule is that common law interspousal immunity from suit for tort continues today as a bar to a suit by a wife against her husband for Wrongful Death, e.g., McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677 (1966). In view of the Pennsylvania decisions cited in the preceding paragraph, it is not necessary to reach this alternative ground. Accordingly, the dismissal of the Wrongful Death Action (12 P.S. § 1602 ff.) will be affirmed, as to all items other than the claim for funeral expenses under 12 P.S. § 1604.
As to these funeral expenses, appellant in her brief has argued that the Wrongful Death Action should be sustained at least to allow the administratrix, d.b.n., to recover such expenses. Although appellee is correct that the terms of 12 P.S. § 1602 (Act of April 26, 1855, as amended April 1, 1937) prevent recovery for funeral expenses since the deceased is survived by his parents, the administratrix, d.b.n., is able to sue for funeral expenses under the literal terms of 12 P.S. § 1604 (Act of May 13, 1927),*fn3 since she is a "person * * * who [is] * * * authorized by law to * * * bring an action to recover damages for a death * * *," under Rule 2202 of Pa.Rules of Civil Procedure, 12 P.S. Appendix.*fn4 It is noted that 12 P.S. § 1604 only gives a cause of action if the administratrix "has paid or incurred such funeral expenses," and that in paragraph 13 of the complaint the decedent's mother claims damages for such expenses. However, the personal representative (appellant) demanded judgment under the Wrongful Death Act, and it is possible that such personal representative has "paid or incurred such expenses." It may well be that the parents, or either of them, in their capacity as parents, paid these funeral expenses, in which event 12 P.S. § 1604 is inapplicable according to its terms. But this cannot be determined from the record before us.
The court has pendent jurisdiction of this claim for funeral expenses under the Wrongful Death Act, 12 P.S. § 1604, even though the amount involved is less than $10,000. See Borror v. Sharon Steel Company, supra.*fn5
II. Survival Action*fn6
A Pennsylvania Survival Action rests on a different theory of recovery than a cause of action under the Wrongful Death Act. The court below, however, granted appellee's motion to dismiss the Survival Action for essentially the same reasons as it granted the dismissal of the Wrongful Death Action: interspousal immunity and imputed negligence. In doing so, it failed to follow what appears to be the law in Pennsylvania.
The appellee argues that the normal incapacity of a minor unemancipated child to sue its parent is not removed by the death of the child. Since a Survival Act allows a cause of action that arises before death to be brought after death by the decedent's representative, the appellee makes a literal argument: Timothy U. Basti couldn't sue his father when alive; thus there was no cause of action existing that "survived" his death and passed to his personal representative. However, the Pennsylvania courts have ruled that death ends an immunity based on the policy of preserving domestic peace and felicity and hence the cause of action exists, the immunity being merely procedural. Johnson v. Peoples First National Bank & Trust Co., 394 Pa. 116, 145 A.2d 716, 717 (1958). Relying on dicta in Parks v. Parks,*fn7 supra, appellee argues that the immunity expires only when the person protected by the immunity dies.*fn8 Appellee points out in support of this position, that no Pennsylvania case has been found which has allowed suit by a deceased unemancipated child's estate against an allegedly negligent living parent.
Although this argument may have some merit, we are faced with Pennsylvania cases which suggest that "avoidance of collusion" is a policy behind inter-family immunity along with the policies of promotion of family unity and avoidance of discord and disturbance stressed by appellee. See e.g., Parks v. Parks, supra, 135 A.2d at 71. If this policy "against collusion," for instance, were the most important one for a court to protect, death by either family member, plaintiff or defendant, should arguably cause the same result.*fn9
The arguments based on "policy" being thus inconclusive, we turn to the existing Pennsylvania appellate court decision which requires the reversal of the lower court's dismissal of the Survival Action in this case. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472, 475 (1956); adopting Burns v. Goldberg, 210 F.2d 646 (3d Cir. 1954). It is noted that in dismissing the Survival Action on the grounds of interspousal immunity and imputed negligence, the District Court "pierced" Timothy U. Basti's estate and found that his mother was the only interested beneficiary. But unlike the Wrongful Death Action, this cannot be done under the Survival Act, Fisher v. Dye, supra. As our decision in Burns v. Goldberg, supra, 210 F.2d at 650, pointed out, concern over whether the mother, as opposed to creditors of the deceased minor or other parties, will take a share of the child's estate should be resolved in the Orphans Court at the time of distribution, not when deciding whether a decedent's representative may sue a living parent. In a case such as this, the Orphans Court would be an appropriate and available forum for deciding any state policy issues that may exist to prevent a wife-mother to benefit from suing a husband-father over the death of their child.*fn10
The decision of the lower court will be reversed and remanded for proceedings in accordance with the foregoing opinion.