On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4326-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lisa and Sabatino.
The dispositive issue in this appeal is whether New Jersey possesses subject matter jurisdiction over plaintiff's wrongful death and survival action arising out of the death of David Arenas, who was killed in a vehicular accident that occurred in New Jersey. The trial court entered an order on October 10, 2008 granting plaintiff's motion for a declaratory judgment on jurisdiction, in which it "DECLINE[D] TO ACCEPT JURISDICTION over this action, respectfully instructing Plaintiff to re-file in the Court of Common Pleas of Philadelphia County." The order stated that plaintiff's motion was granted "without prejudice." The court denied defendants' reconsideration motion by order of November 28, 2008. Defendant M&M Motors (M&M) appeals.*fn1 For the reasons that follow, we reverse.
At the time of his death, Arenas was a resident of Northampton County, Pennsylvania. He worked in New Jersey. While returning home from work on December 2, 2005, the vehicle he was driving crossed the center line and collided head-on with another vehicle in Warren County, New Jersey. Arenas was killed on impact.
At that time, Arenas was not married and had no children. However, Arenas' girlfriend, who also lived in Pennsylvania, was pregnant with his child, to whom she gave birth after Arenas' death. That infant child lives in Northampton County, Pennsylvania.*fn2
When involved in the fatal accident, Arenas was driving a 1998 Chevrolet Cavalier that was owned by his roommate, Hector Gonzalez. The vehicle had been manufactured by GM. Gonzalez had purchased it used from M&M.
Plaintiff did not sue the other driver involved in the collision. Apparently there is no dispute that the accident was Arenas' fault. Instead, plaintiff sued the manufacturer and seller of the vehicle, alleging a lack of crashworthiness because the driver's-side airbag did not deploy and Arenas' seatbelt failed upon impact.
Plaintiff initially filed her action in the Court of Common Pleas in Philadelphia County, Pennsylvania. The action was commenced by filing a praecipe for a writ of summons on November 21, 2007, followed by a complaint filed on January 16, 2008. Thus, under Pennsylvania's filing procedures, the action was commenced less that two years after Arenas' death. See 42 Pa. Cons. Stat. §5503 (2011); Johnson v. Allgeier, 852 A.2d 1235, 1236-37 (Pa. Super. Ct. 2004) (citing Lamp v. Heyman, 366 A.2d 882, 885 (Pa. 1976)). The complaint contained seven counts: (1) strict liability against GM, (2) negligence against GM, (3) breach of warranty against GM, (4) strict liability against M&M, (5) breach of warranty against M&M, (6) a wrongful death claim against both defendants, and (7) a survival claim against both defendants.
The complaint alleged that M&M was a Pennsylvania business, and GM was a Delaware corporation doing business in Pennsylvania.
M&M and GM moved for dismissal on forum non conveniens grounds. They argued that the accident happened in New Jersey, most of the witnesses would be from New Jersey, New Jersey had a greater interest in the safety of motorists on its highways, and the action would more properly be brought in New Jersey. They represented to the court that if the action were re-filed in New Jersey, they would waive any statute of limitation defenses with respect to any of plaintiff's claims that would be viable if filed on the Pennsylvania filing date, November 21, 2007.
On June 20, 2008, the court granted the motion and dismissed the Pennsylvania action "without prejudice to re-file the action in New Jersey." A forum non conveniens dismissal cannot be granted under Pennsylvania law unless an alternative forum is available to the plaintiff. Humes v. Eckerd Corp., 807 A.2d 290, 293-94 (Pa. Super. Ct. 2002). The Court of Common Pleas judge was satisfied that New Jersey was an available forum because the applicable New Jersey statute of limitations was waivable and both defendants agreed to waive it.
Faced with this ruling, plaintiff promptly did two things in Pennsylvania. She filed for reconsideration in the Court of Common Pleas, and filed an appeal in the Superior Court of Pennsylvania. The reconsideration motion was denied on July 18, 2008.
On August 22, 2008, while her appeal in Pennsylvania was pending, plaintiff filed a complaint in Camden County, making the same claims against GM and M&M as she had made in her Pennsylvania complaint. Plaintiff did no essentially as a protective measure while she attempted to restore her lawsuit in the Pennsylvania courts. Neither GM nor M&M asserted a statute of limitations defense in their answers.
On September 18, 2008, plaintiff filed a motion requesting a declaratory judgment regarding jurisdiction. The sole issue she raised in the motion was whether New Jersey lacked subject matter jurisdiction because the New Jersey filing, albeit filed by her, was more than two years after Arenas' death, and therefore the claim was barred by the statute of limitations. The New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, requires that, subject to exceptions not applicable here, any action "shall be commenced within 2 years after the death of the decedent, and not thereafter." N.J.S.A. 2A:31-3 (emphasis added). Relying on this court's decision in Lombardi v. Simon, 266 N.J. ...