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March 19, 1956

Edward A. BRENNAN, Administrator of the Estate of James E. Wood, Deceased,
Francis ROONEY and Paul E. McGuigan

The opinion of the court was delivered by: DUSEN

This case comes before the court on (A) defendant's *fn1" motion to dismiss the complaint on the ground that the plaintiff 'has no legal capacity, authority, power or right to prosecute this cause of action' *fn2" and (B) defendant's answer to plaintiff's motion for leave to amend the complaint by substituting for the plaintiff 'Edward A. Brennan, Administrator Ad Prosequendum of the Estate of James E. Wood, deceased,' which answer opposes this motion on the ground that the amendment would introduce a new cause of action barred by the statute of limitations.

The plaintiff's decedent (James E. Wood) was killed on July 4, 1953, as a result of injuries received while riding as a passenger in the car operated by the defendant Rooney and caused by a collision in New Jersey between that car and the motor vehicle driven by the defendant McGuigan. Edward A. Brennan, a citizen of New Jersey, was appointed administrator of the estate of James E. Wood, deceased, by the Register of Wills of Philadelphia County *fn3" on July 11, 1953. The defendants are both citizens of Pennsylvania. This suit was instituted on July 24, 1953. The complaint contains a First Cause of Action under the Wrongful Death Act, 12 P.S.Pa. § 1601 et seq., and a Second Cause of Action under the Survival Act, 20 P.S.Pa. § 320.601. Edward A. Brennan was appointed Administrator Ad Prosequendum of the estate of James E. Wood, deceased, by the Surrogate of Cape May County, New Jersey, on December 6, 1955.

 A. Motion to Dismiss Complaint for Lack of Proper Party Plaintiff

 Defendant concedes that the plaintiff, as general administrator, is entitled to sue under the Survival Act so that the issue here is whether the plaintiff, as such general administrator, may sue under the Wrongful Death Act in view of the following terms of the New Jersey Wrongful Death Act, New Jersey, 2A:31-2 N.J.S.A.:

 'Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought * * *.' *fn4"

  Since this action has been instituted in a Federal District Court located in Pennsylvania, the capacity of the plaintiff to sue is governed by the law of Pennsylvania. *fn5" However, the Pennsylvania law provides that where an action for wrongful death arising under the laws of some other jurisdiction is brought in this Commonwealth, 'it shall be brought by the person authorized to bring the action by the law of the jurisdiction where the cause of action arose.' Pa.R.C.P.No. 2207, 12 P.S. Appendix. See also Maxson v. McElhinney, 1952, 370 Pa. 622, 624-625, 88 A.2d 747. Since the above-quoted New Jersey statute requires the institution of such a suit as this by an administrator ad prosequendum, the defendant's motion for the dismissal of the complaint would have to be granted if the plaintiff's motion to amend the complaint by substituting Edward A. Brennan, administrator ad prosequendum, as plaintiff is denied.

 B. Plaintiff's Motion to Amend the Complaint by Substitution as Plaintiff Edward A. Brennan, As Administrator Ad Prosequendum, for the Same Individual as General Administrator

 It is conceded that the statute of limitations had expired before both the date that the plaintiff was appointed administrator and prosequendum in December 1955 and the date that this motion to amend the complaint was filed in January 1956. *fn6" However, the Pennsylvania Supreme Court has held that an amendment to the complaint, making clear the representative capacity in which the plaintiff sues in an action under the Pennsylvania Wrongful Death Act, will be permitted after the statutory period has expired. In Usner v. Duersmith, 1943, 346 Pa. 494, 31 A.2d 149, Harry A. Usner sued as parent of Galen S. Usner and he was permitted, after the running of the statute of limitations, to amend the complaint in order to sue as Harry A. Usner, trustee ad litem, in order to comply with the requirements of Pa.R.C.P. 2202. The court said, 346 Pa. at page 496, 31 A.2d at page 150:

 'The Rules are to be interpreted with common sense to carry out the purposes for which they were adopted. Our statutes providing for amendments have always been liberally construed. Miners Savings Bank (of Pittston) v. Naylor, 342 Pa. 273, 274, 20 A.2d 287. We all think that the learned judge was right in granting leave to make the correction. Compare Gentile v. Philadelphia & Reading Ry., 274 Pa. 335, 340, 118 A. 223, 224, in which, after the expiration of the limitation period, the court, in an action brought by a 'widow on behalf of herself and minor children, and by the E. & G. Brooke Iron Company' was allowed to amend by adding "for the use of the widow and the iron company, as their interests,' may appear.' The appellant refers to cases like La Bar v. New York, Susque. & West. R. Co., 218 Pa. 261, 67 A. 413, but in those cases the statutory right of action was given to the administratrix whereas the suit was brought to assert a personal right which had not been given to the plaintiff. In the present case, the parent has a statutory right; when the statement is filed it may appear that his recovery is for himself and also for others. Allowing the correction to conform to Rule 2202(b) is, in effect, mere addition of notice to the defendant that others, if any, may, pursuant to the statute, share in the recovery.'

 The following factors which are present in this case are indications that the Pennsylvania appellate courts would follow the above-mentioned Usner case and grant the motion to amend the complaint on the facts of this case:

 1. Under New Jersey law, the administrator ad prosequendum is a nominal party only. Any amount recovered in the law suit must be paid to the general administrator (the present plaintiff) and may not be paid to the administrator ad prosequendum. *fn7"

 2. The persons entitled to the amount recovered would not be altered by the substitution of Mr. Brennan as administrator ad prosequendum in place of Mr. Brennan as general administrator. *fn8"

 3. The qualification of Mr. Brennan as general administrator was expressly for the purpose of bringing this suit, (see footnote 3 above) and Pennsylvania law does not provide for a special administrator to prosecute an action such as this.' *fn9"

  4. It is clear that the New Jersey court would permit the substitution of an administrator ad prosequendum in place of a general administrator in such a case after the statute of limitations has run. See Wilson v. Dairymen's League Cooperative Ass'n, 1928, 105 N.J.L. 188, 143 A. 454; Noto v. Gambi, 1940, 11 A.2d 93, 18 N.J.Misc. 97. *fn10"

 5. There is no evidence that defendant has been prejudiced by the delay in this amendment of the representative capacity in which Mr. Brennan now wishes to sue and defendant has made no claim that he has been prejudiced by the delay. *fn11"

 Defendant contends that the Pennsylvania Supreme Court has decided in Rosenzweig v. Heller, 1931, 302 Pa. 279, 153 A. 346, that such an amendment as this may not be made after the statute of limitations has run. This case apparently did so hold in a situation involving the New Jersey Wrongful Death Act. However, the facts in the Rosenzweig case are distinguishable from the situation now before this court on at least these two important grounds:

 (a) The original plaintiff in the Rosenzweig case was the widow of the decedent and she did not bring the action as a designated fiduciary entitled to act under any New Jersey statute. In this case, the original plaintiff is the general administrator, who is the party entitled to receive any funds secured as the result of the Wrongful Death Act under the terms of the New Jersey law. See New Jersey statute set out in footnote 7. Furthermore, this same person who is the general administrator is being substituted as a special administrator (administrator ad prosequendum), required by the New Jersey statute to institute the action. As pointed out in the language quoted from the Usner case cited above, the Pennsylvania Supreme Court has distinguished cases where an action was instituted by an individual and an attempt was made, after the period of limitations, to change the plaintiff to an authorized fiduciary from cases where the change in the party plaintiff is merely to indicate a different fiduciary capacity, which is the situation in this case. *fn12"

  (b) The question of whether an administrator ad prosequendum could be substituted for the widow after the expiration of the Pennsylvania period of limitations was never argued to the court in the Rosenzweig case. *fn13"

 The other cases relied on by defendant also are distinguishable from this case on its facts. *fn14" Also, at least one lower court decision has permitted an amendment of the complaint to substitute an administrator ad prosequendum on facts similar to this case. See Fierstein v. Piper Aircraft Corp., D.C.M.D.Pa.1948, 79 F.Supp. 217.

 This issue, being dependent on the policy of the Pennsylvania courts, *fn15" is one primarily for decision by the appellate courts of Pennsylvania. Cf. Rogers v. Guaranty Trust Co., 1933, 288 U.S. 123, 53 S. Ct. 295, 77 L. Ed. 652; Commonwealth of Pennsylvania v. Williams, 1935, 294 U.S. 176, 55 S. Ct. 380, 79 L. Ed. 841; Great Lakes Dredge & Dock Co. v. Huffman, 1943, 319 U.S. 293, 63 S. Ct. 1070, 87 L. Ed. 1407; Stainback v. Mo. Hock Ke Lok Po, 1949, 336 U.S. 368, 383-384, 69 S. Ct. 606, 93 L. Ed. 741; Alabama Public Service Commission v. Southern Ry. Co., 1951, 341 U.S. 341, 349-350, 71 S. Ct. 762, 95 L. Ed. 1002. Any Pennsylvania decisions on the issue which become available to this court prior to the entry of final judgment should be considered by it. *fn16"

 Under these circumstances, I will grant the motion to amend the complaint without prejudice to the right of defendant to base motions for summary judgment under Rule 56, for dismissal of the action under Rule 41, as well as for a directed verdict and for judgment in his favor after verdict under Rule 50, on the grounds now advanced by defendant with respect to the cause of action based on the Wrongful Death Act. *fn17"

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