This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.
Can an Adult Child of a Decedent Share in Wrongful Death Proceeds in Pennsylvania?
Can an adult child of a decedent share in the proceeds from a Wrongful Death action in Pennsylvania (42 Pa. C.S. Section 8301)? This is a question that often arises in accidental / wrongful death cases.
Pursuant to 42 Pa. C.S. Section 8301(b), the “right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth.”
The most important case in Pennsylvania addressing whether an adult child can share in wrongful death proceeds is Gaydos v. Domabyl, 152 A. 549 (Pa. 1930). In Gaydos, the Supreme Court of Pennsylvania held that the adult child must stand in a “family relation” to the decedent and must suffer a “pecuniary loss” to share in wrongful death proceeds. The court stated that a “family relation” “exists between parent and child when a child receives from a parent services or maintenance or gifts with such reasonable frequency as to lead to an expectation of future enjoyment of these services, maintenance, or gifts.” Gaydos, 152 A. at 551. The court further stated that “[p]ecuniary loss has been defined to be a destruction of a reasonable expectation of pecuniary advantage from the deceased. It is not a matter of guess or conjecture, but must be grounded on reasonably continuous past acts or conduct of the deceased. … The reasonable expectation of pecuniary advantage to one standing in the family relation may be shown in many ways, but more frequently through services, food, clothing, education, entertainment, and gifts bestowed; to be reasonable, the services and gifts must have been rendered with a frequency that begets an anticipation of their continuance; occasional gifts and services are not sufficient on which to ground a pecuniary loss.” In re Estate of Wolfe, 915 A.2d 1197 (Pa. Super. 2006) (citations omitted), quoting Gaydos, 152 A. at 552.
Thus, in determining whether an adult child can share in the wrongful death proceeds, the adult child will need to set forth evidence of a “family relation” and “pecuniary loss”.
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Valet Service Owed No Duty to Withhold Keys to Vehicle Even if Owner Was Visibly Intoxicated
In Moranko v. Downs Racing LP, 2014 WL 2861549*1 (Pa. Super. June 24, 2014), a mother filed a wrongful death and survival action arising from the death of her son from an automobile accident after the son left the Mohegan Sun at Pocono Downs. The mother alleged in the complaint that her son drank “copious amounts of alcohol” while at the Mohegan Sun and that its valet service gave her son the keys to his car while he was allegedly visibly intoxicated. Id.
The Pennsylvania Superior Court found, as a matter of first impression in Pennsylvania, that Pennsylvania law did not impose “a duty upon Mohegan Sun and its valet service to withhold the keys to a vehicle if the owner appears visibly intoxicated.” Id. at 2. In fact, the court further found that the valet service “was duty bound to surrender control of the decedent’s vehicle when it was demanded, notwithstanding the decedent’s alleged intoxication.” Id. at 4. Although the court sympathized with the mother’s loss, the court could not find the Mohegan Sun’s valet service had the power to withhold the keys. Id. Thus, the court entered judgment in favor of Mohegan Sun on the mother’s claims against it for damages due to the death of her son.
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A Decedent’s Agreement to Arbitrate All Claims is Not Binding on Wrongful Death Claimants in Pennsylvania
In the previous posts, I discussed the difference between a wrongful death action and survival action in the Commonwealth of Pennsylvania. A recent opinion, Pisano v. Extendicare Homes, Inc., 2013 Pa. Super. LEXIS 2144*1 (August 12, 2013), from the Superior Court of Pennsylvania provides an excellent example of the difference between the two actions.
In Pisano, the decedent’s daughter, using a Power of Attorney, signed an Alternative Dispute Resolution Agreement (“ADR Agreement”) on behalf of the decedent at the time of his admission to Belair Health Facility (“Belair”). The agreement provided “’that any and all disputes arising out of or in any way relating to this Agreement or to the Resident’s stay at the center [including] … death or wrongful death’ are subject to arbitration.” Pisano, 2013 Pa. Super. LEXIS at *6-7. Arbitration agreements take the fact finding and the awarding of damages from a jury and give it to an arbitrator(s). As such, the agreement means the decedent gave up his right to a trial by jury.
Following the decedent’s death, his son, as the administrator of decedent’s estate, commenced a wrongful death action against Belair in the Court of Common Pleas of Westmoreland County on behalf of the wrongful death beneficiaries (decedent’s children). The administrator, however, conceded that the survival action was subject to the ADR Agreement.
As to the wrongful death action, Belair filed preliminary objections to the complaint arguing that the ADR Agreement required that the wrongful death action also be submitted to arbitration. The Court of Common Pleas of Westmoreland County denied the preliminary objections and refused to compel the wrongful death action to arbitration. Belair appealed to the Superior Court of Pennsylvania.
Noting this was an issue of first impression, the Superior Court found that the ADR Agreement was not binding on the wrongful death beneficiaries and thus the wrongful death action could proceed in the Court of Common Pleas of Westmoreland County. Specifically, the Superior Court stated: “[i]n sum, we hold that Pennsylvania’s wrongful death statute creates an independent action distinct from a survival claim that, although derived from the same tortious conduct, is not derivative of the rights of the decedent. We conclude, therefore, that the trial court did not abuse its discretion in determining that Decedent’s contractual agreement with Belair to arbitrate all claims was not binding on the non-signatory wrongful death claimants.” Id. at 31.
This case is important in that it confirms wrongful death actions and survival actions are distinct claims.
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Basics of a Survival Action in Pennsylvania
As previously mentioned, Pennsylvania permits the recovery of damages due to an accidental death caused by someone else’s negligence or other conduct under two statutes: the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa. C.S. § 8302. This post focuses on a claim for damages under the Survival Act in Pennsylvania due to an accidental or wrongful death.
What is a survival action in Pennsylvania? Pursuant to 42 Pa. C.S. § 8302, “[a]ll 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.” As such, any claim a decedent may have arising from the accident leading to their death “survives” and may be pursued on their behalf. This is unlike a wrongful death action, which is a claim that belongs to the wrongful death beneficiaries.
Who can bring a survival action in Pennsylvania? The personal representative, administrator, administratrix, executor, or executrix of the decedent’s estate may bring the survival action arising fron an accidental or wrongful death.
What are the recoverable damages in a survival action in Pennsylvania? Damages include, but are not limited to: loss of earnings from the date of the injury to the date of death; loss of future earnings, which are reduced by the cost of personal maintenance (living expenses to maintain life) of the decedent; loss of retirement income; pain and suffering of the decedent; loss of life’s pleasures; and medical, hospital, and nursing expenses. Pennsylvania Suggested Standard Civil Jury Instructions (3rd Ed.) § 6.19 (Civ). Some of the damages in a survival action are the same as those available in a wrongful death action. Nevertheless, if both a survival action and wrongful death action are filed, the damages may not be duplicative. The distribution of any damages recovered in a survival action go through the estate and are distributed pursuant to the decedent’s will, or if no will exists, then the damages are distributed pursuant to Pennsylvania’s intestacy statutes, 20 Pa. C.S. § 2101 et al. Because the damages in a survival action pass through the decedent’s estate, unlike in a wrongful death action, such damages are subject to Pennsylvania’s inheritance tax.
What is the statute of limitations for a survival action in Pennsylvania? A survival action must be filed within two years of the date of injury. 42 Pa.C.S. § 5524(2). Accordingly, while a wrongful death action accrues on the date of death, it is important to realize that a survival action may accrue prior to the date of death and thus on a different date than the wrongful death action.
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Basics on the Wrongful Death Action in Pennsylvania
This is the first in a series of posts that will provide general background on claims that may be made due to an accidental death in Pennsylvania and West Virginia. Today, I am going to focus on a claim for damages under the Wrongful Death Act in Pennsylvania. As you will read, the basis for the claim in Pennsylvania is a statute. The goal of the post is to provide some basic information and thus does not cover all of the intricacies of a wrongful death action in Pennsylvania.
Pennsylvania permits the recovery of damages due to an accidental death caused by someone else’s negligence or other conduct under two statutes: the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa. C.S. § 8302.
What is a wrongful death action in Pennsylvania? It is a claim that seeks “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another ….” 42 Pa. C.S. § 8301(a). But, the right of action only exists for the benefit of certain family members of the decedent. The statute states: “the right of the action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not residents” of the Commonwealth of Pennsylvania. 42 Pa.C.S. § 8301(b). As you can see, the potential beneficiaries are limited. Should none of the foregoing beneficiaries exist, however, then a “personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 Pa. C.S.A. § 8301(d).
Who can bring a wrongful death action in Pennsylvania? Within six months of the death of the decedent, the personal representative of the deceased may bring a wrongful death action. Pa.R.Civ.P. 2202(a),(b). The personal representative is defined as “the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth.” Pa.R.Civ.P. 2201. Nevertheless, should the personal representative of the deceased fail to bring a wrongful death action within six months of the death of the decedent, although the personal representative can still file the action after the six month deadline, any potential beneficiary entitled to recover damages in a wrongful death action may bring the “action as trustee ad litem on behalf of all persons entitled to share in the damages.” Pa.R.CivP. 2202(b). Once an action is filed, it bars any other action for wrongful death. Pa.R.Civ.P. 2202(c).
What are the recoverable damages in a wrongful death action in Pennsylvania? Damages include, but are not limited to: reasonable hospital expenses, nursing expenses, medical expenses, funeral and burial expenses, expenses of administration necessitated by reason of injuries causing death, loss of contributions from the decedent, loss of services, society, and comfort, and loss of services to the decedent’s children, such as guidance, tutelage, and moral upbringing. 42 Pa. C.S.A. § 8301(c); Pennsylvania Suggested Standard Civil Jury Instructions (3rd Ed.) § 6.19 (Civ).
What is the statute of limitations for a wrongful death action in Pennsylvania? An action for wrongful death must be filed within two years of the death of the decedent. 42 Pa.C.S. § 5524(2).
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