APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-631)
Before Aldisert, Adams and Higginbotham, Circuit Judges.
The question for decision in this diversity case is whether the district court properly determined that under the rule of Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 62 S. Ct. 1284, 86 L. Ed. 1757 (1941), a Pennsylvania court would apply Pennsylvania negligence law to determine liability and New York survival law to measure damages. The action was brought under the Pennsylvania survival statute by a New York plaintiff seeking to recover for fatal injuries sustained in Pennsylvania. Because we believe that a Pennsylvania court would apply its own law to both liability and damages, we reverse.
On January 17, 1976, while snowmobiling in Lycoming County, Pennsylvania, Raymond H. Broome, a New York resident, hit a steel cable strung across an access road on property owned by Antlers' Hunting Club, a Pennsylvania corporation. He died instantly of a broken neck. Decedent's executor instituted a diversity action in the Western District of New York on December 8, 1976 against Antlers' Country Club. Upon discovery that the site of the accident was not owned by Antlers' Country Club, a new complaint alleging negligence and seeking damages was filed against appellee Antlers' Hunting Club on January 18, 1977, one year and one day after the fatal accident.
Appellee moved the district court for dismissal under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction over the defendant corporation, which did no business in New York, or, in the alternative, for an order transferring venue to Pennsylvania. The New York district court denied appellee's motion to dismiss, but transferred the case to the Middle District of Pennsylvania.
After the transfer, the appellee moved to amend its answer in order to plead Pennsylvania's one year statute of limitations as a defense to appellant's wrongful death action, and if that motion were granted, to dismiss the complaint. The motion to amend was granted and the motion to dismiss was treated as a motion for summary judgment and was also granted. Relying on Klaxon, supra, the court determined that under Pennsylvania choice of law rules the Pennsylvania statute of limitations would apply to appellant's wrongful death claim whether New York or Pennsylvania substantive law applied. Consequently appellant's wrongful death action was barred by Pennsylvania's one year statute because it had been filed one day after the time limit had elapsed. Appellant was ordered to submit an amended complaint setting forth a survival action within seven days or face dismissal of his case with prejudice.
Appellant's amended complaint under the Pennsylvania survival act*fn1 fared no better than his original one. The district court determined that both Pennsylvania, the site of the accident, and New York, the domicile of the decedent and the residence of his survivors, had an interest in the application of their respective laws. The court ruled that New York law should govern the damages recoverable under the survival action, although Pennsylvania law should determine the liability of a resident defendant. The court reasoned that the existence of New York survivors indicated a stronger interest on the part of New York, that the site of the accident was "clearly fortuitous," that there could have been no reliance on the law of a state where the injury occurred when the tort was unintentional, and further, that though the place of the injury might have an interest in compensating those who rendered medical aid to the injured, if death was immediate such a state would have no interest.
The appellee then filed a motion to dismiss the complaint for lack of subject matter jurisdiction. The New York survival statute expressly limits recovery to damages "accruing before death" and does not include damages "for or by reason of death," except funeral expenses.*fn2 Because death was instantaneous, no damages due to medical expenses or pain and suffering accrued before death, nor could lost earnings, properly characterized as damage "by reason of death," be recovered under the statute. Only funeral expenses, therefore, could be awarded under the New York law governing damages. Because they amounted to only $2,637, subject matter jurisdiction in federal court was lacking. Appellant's complaint was dismissed; he appeals to this court from the district court orders applying New York law to damages and dismissing his complaint.
There is no precise Pennsylvania precedent that governs the case at bar. It thus becomes necessary to inquire into discrete elements of the problem, and then, guided by existing Pennsylvania case law, make the prediction required by Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). We begin our analysis with the recognition that an action brought under Pennsylvania's constitutionally mandated*fn3 survival statute is, unlike a wrongful death action,*fn4 not a new cause of action, but "merely continues in his personal representative the right of action which accrued to the deceased at common law . . . ." Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659, 661 (1942). A claim under the survival act is predicated on the rights possessed by the decedent had he continued to live. Thus, "elements of permissible recovery . . . are well established pain and suffering until the time of death, and the economic value of the life, as measured by the present worth of likely earnings during the period of life expectancy," Id., plus expenses for medical and surgical care, nursing, and funeral expenses if paid or incurred by the plaintiff. 12 P.S. § 1604.
Next, because we are dealing with a common law action of tort that has survived the death of the injured party, it is relevant to inquire whether the Pennsylvania courts distinguish between a claim brought by a tort victim on his own behalf and a claim brought by the personal representative of a tort victim who died. Only if Pennsylvania courts make such a distinction could foreign law be applied to the damage issue in this suit where a non-resident died before the suit was brought.
Our research indicates that the only distinction in damages thus far identified in cases in which the victim dies, is that the Pennsylvania appellate courts have not permitted recovery for loss of life's pleasures as a separate element of recovery from loss of life itself, thereby restricting recovery to the pecuniary loss to a decedent's estate of medical expenses, loss of past and future earnings, plus pain and suffering endured prior to death. Only a living person whose faculties have been impaired through injury may recover damages for loss of life's amenities. Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 482 Pa. 441, 393 A.2d 1188 (Pa.1978). Thus, Pennsylvania recognizes an ...