'(c) While an action is pending it shall operate as a bar against the bringing of any other action for such wrongful death.'
Those rules became effective September 4, 1939, and pertain only to the wrongful death action. They in no way effect the procedure in an action brought to recover damages under the Survival statute.
Those rules have the same effect in law as a statute specifically passed by the legislature. The Act of June 21, 1937, P.L. 1982, 17 P.S. § 61 et seq., authorized the Supreme Court of Pennsylvania to prescribe by general rules the practice and procedure in Pennsylvania courts. Section 1 also provided that the operation of any act relating to practice and procedure inconsistent with such rules shall be suspended insofar as they are inconsistent with said Act of 1851 as amended by the Act of 1855, as interpreted by the Pennsylvania courts were suspended by the Act of 1937 and the rule adopted pursuant thereto.
'The wrongful death and the survival actions, although now redressed in one suit or trial under Pa. R.C.P. No. 213(e), 12 P.S. Appendix, are distinct and separate actions, entirely dissimilar in nature, and are cumulative not alternate. The first was unknown to the common law and rests upon statutes. It is provided and regulated by the Act of April 15, 1851, P.L. 669, Sec. 19, as amended by the Act of April 26, 1855, P.L. 309, as further amended by the Act of June 7, 1911, P.L. 678; and the Act of May 13, 1927, P.L. 992, 12 P.S. §§ 1601-1604.
The Act of 1851 as amended is often called the Wrongful Death Act. This action may be brought only by a class of persons recognized by the law as usually and ordinarily dependent upon a decedent, namely, the spouse, children or parents, and then only if suit was not instituted by the injured party in his lifetime. Under Pa. R.C.P. No. 2202, which applies only to wrongful death actions, the action is instituted by the decedent's personal representatives for the benefit of the persons entitled under the act of damages for the death. The damages recovered are payable immediately to the dependents and form no part of the assets of the decedent's estate. The recoverable damages, in addition to certain expense items enumerated in the Act of 1927, supra, consist of the pecuniary loss to the decedent's statutory dependents suffered by depriving them of that part of his earnings which they would have received from him had he lived. Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A.2d 659; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549; Kaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 104 A.L.R. 1267; Stegner v. Fenton, 351 Pa. 292, 40 A.2d 473. In wrongful death cases, the suit is based upon the liability of the tort-feasor to decedent's dependents, notwithstanding that now the action is brought for them by the personal representatives
The Pennsylvania rules of procedure govern the practice in the for the party plaintiff and the real party in interest, 'the party authorized by statute for sue.' We therefore are obliged to go to the Pennsylvania statutes to see who that party is.
There is nothing in Rothschild v. Ritter, D.C., 4 F.R.D. 495, that in any way conflicts with this interpretation of Rule 17(b).
By analogy there have been situations where state legislatures have adopted a method of procedure or have created a right, and have restricted by the terms of the statute the courts in which that particular right might be pursued. In such cases, it has been held in the Federal courts that no action on the part of the state legislature could remove the jurisdiction of the Federal courts in the event that the requirements as to diversity and jurisdictional amount were present.
We have therefore disposed of defendants' reasons assigned in their motion to dismiss. We have found that each of them is without merit.
We find that plaintiff has stated a claim upon which relief can be granted; that the plaintiff administratrix is the proper party plaintiff and the real party in interest.
For the foregoing reasons, the defendants' motion is dismissed. An order to that effect will be filed forthwith.