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Wrongful Death and Survival actions - Similarities and Distinctions

Wrongful Death and Survival Actions Pleading, Proving and Valuing

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Where a death is caused by the actionable conduct of another, two actions can be brought under Pennsylvania law -- a wrongful death action and a survival action. A survival action is an action belonging to the decedent's estate, and the damages recovered in a survival action are subject to estate and inheritance taxes and to the claims of creditors. The damages in a survival action are distributed according to the decedent's will if he died testate or according to the intestate laws if he died intestate. A wrongful death action belongs to the designated beneficiaries. The action does not belong to the estate. Damages are not subject to estate or inheritance taxes or to the claims of creditors and are distributed according to the intestate laws regardless of whether there is a will.

The statutory provisions governing survival actions make no reference to the amount of damages recoverable, and the determination of the measure of damages has, therefore, been left to judicial decision. A survival action compensates the decedent's estate for various categories of damage sustained by the decedent, as contrasted with the wrongful death action which deals with the economic impact of the death on the designated beneficiaries. And a survival action, unlike a wrongful death action, is not a new cause of action, but merely a continuation in the personal representative of the right of action that accrued to the decedent at common law. A survival action arises out of the original injury and not out of the death. The estate is substituted for the decedent, and its recovery is based on the rights of action that were possessed by the decedent at his death. In a survival action the personal representative of the decedent can recover the same damages as those the decedent could have recovered if he had survived until the conclusion of the law suit.

A. Who Can Sue?

The Pennsylvania Rules of Civil Procedure provide that the action for wrongful death shall be brought only by the personal representative of the decedent, but if no action 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 to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages. In other words, during the first six months after the death, the decedent's personal representative is the sole person entitled to bring a wrongful death action; thereafter a wrongful death action may be brought either by the personal representative or by any other person entitled to share in the damages; and the action that is brought first bars the institution of any other action.

A survival action may be brought only by the personal representative of the decedent. It is provided by statute that where the plaintiff dies after he has commenced an action, his personal representative shall be substituted as plaintiff, and where no suit has been brought by the decedent during his lifetime, suit shall be commenced by his personal representative.

The persons entitled to be appointed as personal representative and the order in which they may be appointed is prescribed by statute. The right to maintain an action for wrongful death should not be confused with the right to share in the distribution. The right to share in the distribution is not determinative of the right to bring the action.

B. Who Can be Sued?

Once a person has died he cannot be sued. Where a cause of action lies against a deceased defendant, the suit should be against the personal representative of the decedent's estate, and not against his estate, even if there has been no personal representative appointed.

In a situation where the plaintiff has brought suit against a deceased person, the plaintiff's only recourse is to file a new action, naming the personal representative as defendant. If the death of the decedent is fraudulently concealed and the statute of limitations has run, the plaintiff can assert the fraud or concealment as a basis for extending the statutory period. It is provided by statute that the death of a person does not stop the running of the statute of limitations applicable to any claim against him, but a claim against the decedent that otherwise would be barred within one year after the death of the decedent is not barred until one year after the death, affording a plaintiff at least one year from the death within which to secure the appointment of a personal representative and to commence suit against the personal representative.

C. Who Can Recover in a Wrongful Death Action?

The Wrongful Death Act provides that the right of action shall exist only for the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. In order to recover under the Wrongful Death Act the beneficiary must not only have the requisite family relationship to the deceased, but must show that by reason of the wrongful death he suffered the loss of a reasonable expectation of pecuniary advantage.

The Rules of Civil Procedure provide that in an action for wrongful death, the plaintiff must allege in his complaint:

a) plaintiff's relationship to the decedent
b) his right to bring the action
c) the names and last known addresses of all persons entitled by law to recover damages, and
d) their relationship to the decedent and that the action was brought in their behalf.

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