Appeal, No. 53, Jan. T., 1952, from order of Court of Common Pleas of Northampton County, Nov. T., 1950, No. 111, in case of Frances Pantazis, Admrx., Estate of James Pantazis v. Fidelity and Deposit Company of Maryland. Order reversed.
A. Albert Gross, with him Frances H. S. Ede and Gross, McGiffert & Herster, for appellant.
Herbert Fishbone, with him Calvin F. Smith and Smith, Paff, VanSickle and Fishbone, for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Ladner and Chidsey, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The appeal is from an order of the court of common pleas of Northampton County decreeing that in a suit upon the appeal bond of a corporate surety, a motion for judgment on the pleadings should be held in abeyance pending the determination of proceedings in the orphans' court.
Frances Pantazis, individually and as administratrix, instituted an action in trespass against Edward Follweiler for damages growing out of an automobile accident involving the death of her husband. Plaintiff's claim as widow was in a "death action", whereas her claim as administratrix was a "survival action." An examination of the record discloses that upon trial plaintiff in the death action suffered a voluntary non-suit. "Individually and as widow", she had released the defendant edward Follweiler (the owner of the car), Robert Follweiler, its operator, and also the State Farm Mutual Automobile Insurance Company, the indemnity insurance carrier of the defendant. The named consideration was $1,500. The trial proceeded
in the survival action, with plaintiff as administratrix. The jury rendered a verdict for the plaintiff-administratrix for $7,280. The court refused defendant's motion for judgment n.o.v./ Defendant appealed to this Court. The Fidelity and Deposit Company of Maryland (the present defendant) with defendant in such tort action, filed an appeal bond in usual form, in the penal sum of $15,000. The surety company obligated itself to pay the judgment, interest and costs, should the principal (the defendant in the appealed action) fail to "prosecute the appeal with effect." This Court, in a per curiam opinion, reported in 364 Pa. 553, 73 A.2d 410, affirmed the judgment. As the judgment debtor did not pay the judgment, the plaintiff-administratrix then instituted the present suit against the surety company on the appeal bond.An answer with new matter was filed by the defendant to the complaint (hereafter discussed). A motion was made by plaintiff for judgment on the pleadings. The court below decreed that action on the motion should be suspended and held in abeyance pending proceedings instituted by the judgment debtor and his indemnity company in the tort case before the orphans' court having jurisdiction over the settlement and distribution of the estate of plaintiff's deceased husband.This appeal followed.
The extraordinary obstructive tactics of the judgment debtor and his appeal surety in their effort to avoid paying the judgment, in our opinion, are entirely unjustified and are without merit.
At the outset, where a death is caused because of the negligence of a defendant, two actions may be brought against the tortfeasor after the death, viz.: (1) a "death action" which under statute is for the benefit of enumerated relatives, measured by the pecuniary loss occasioned to them and (2) a "survival action", a right which ...