The opinion of the court was delivered by: MURPHY
We have here a motion to dismiss a claim, the action being based upon the provisions of the Pennsylvania 'Survival' and 'Wrongful Death' statutes. Jurisdiction for the action is based upon diversity of citizenship and an averment of the required jurisdictional amount. Jud. Code, Section 24(1), 28 U.S.C.A. § 41(1).
September 17, 1946, Allen J. Suders, Jr., a resident and citizen of New Jersey, was fatally injured in a collision between a car he was driving and a tractor trailer owned by defendants and operated by defendants' servant in the course of defendants' business. Deceased, an unmarried adult male, was survived by his parents. The father and mother of deceased are residents and citizens of New Jersey; the defendants are residents and citizens of Pennsylvania.
Letters of administration of the estate of deceased were granted to his mother, Mae C. Suders, by the State of New Jersey May 10, 1947; ancillary letters of administration on said estate were granted to her by the State of Pennsylvania May 15, 1947.
The place of the accident, injuries, death, residence of defendants and grant of the ancillary letters of administration are all in this district.
May 21, 1947, 'Mae C. Suders, Administratrix of the Estate of Allen J. Suders, Jr., Deceased,' filed a complaint to recover damages for the wrongful death of her son. The complaint sets forth that plaintiff is administratrix of the estate of deceased but does not state specifically whether she is suing in the capacity of and under the authority of the New Jersey letters of administration or the Pennsylvania ancillary letters of administration. The action for wrongful death is joined with the claim under the Survival Statute, Rule 18, Federal Rules of Civil Procedure, 28 U.S.C.A. following Section 723c.
Averment is made that the only persons entitled by law to recover damages for the wrongful death and to participate in the estate of deceased are his parents; and further that no other action be deceased during his lifetime was commenced against defendants to recover damages for the injuries causing his death, nor by any other person to recover damages from defendants for the wrongful death of deceased.
Defendants filed a motion to dismiss the complaint because,
(1) it fails to state a claim upon which relief can be granted;
(2) a foreign administratrix has no capacity to sue as such under the laws of Pennsylvania;
(3) Plaintiff is not the proper person to prosecute the claim in view of Rule 17 of the Federal Rules of Civil Procedure.
As to the first reason, see Rule 12(b) (6). Rule 7(b) )1) states, inter alia, 'an application to the court for an order shall be by motion which * * * shall state with particularity the grounds therefore * * *.' Defendants do not question the jurisdiction of the subject matter, or of the person, nor allege improper venue, insufficiency of process, nor insufficiency of service of process. See Rule 12(b) (1) (2) (3) (4) (5).
Obviously a claim for wrongful death meeting the requirements of the Judicial Code, Section 24(1), 28 U.S.C.A. § 41(1), may be brought in the United States district court. The right arising under and the liability imposed by the Survival and Wrongful Death statutes of the State of Pennsylvania may be enforced in the district court having jurisdiction of the subject matter and parties. Dennick v. Central R. Co., 103 U.S. 1126 L. Ed. 439.
Defendants, assuming that plaintiff was suing in the capacity of foreign domiciliary administratrix under and by virtue of the authority granted her by the State of New Jersey, object on the ground that a foreign administratrix has no capacity to sue as such under the laws of Pennsylvania.
Plaintiff points to the grant of ancillary letters of administration by the State of Pennsylvania and insists that the action was brought and is being maintained under and ...