The opinion of the court was delivered by: FOLLMER
This matter is before the Court on motion of defendant P. Lorillard Company to dismiss the Complaint. The action is filed by Gladys I Mitchell, Administratrix of the Estate of William K. Mitchell, Sr., deceased, against American Tobacco Company and P. Lorillard Company.
Jurisdiction is based on diversity.
Count 1 of the Complaint is a claim for damages under Pennsylvania Survival Act of April 18, 1949, P.L. 512, as amended (20 P.S. § 320.601 et seq.). Count 2 of the Complaint is a claim for damages under Pennsylvania Wrongful Death Act of April 26, 1855, P.L. 309 (12 P.S. § 1601 et seq.).
The Complaint sets forth, inter alia, that on or about February 18, 1958, William K. Mitchell, Sr., died as a result of cancer of the lungs, being more particularly described as bronchogenic carcinoma; that for many years preceding his death, decedent smoked approximately two packages of cigarettes per day; up to the year 1952 he smoked Old Gold cigarettes and from the year 1952 to his death he smoked Pall Mall cigarettes; that the use of the tobacco in the quantity stated precipitated or contributed to the development of bronchogenic carcinoma in decedent, which caused him great pain and suffering and ultimately resulted in his death on February 18, 1958; that defendants were negligent in not warning the public and particularly decedent that the use of the said tobaccos by smoking would precipitate or contribute to the development of cancer; and instead of warning the public and particularly decedent of such bad effects from the use of their products, defendants negligently and carelessly advertised that the use of their products had no ill effects and that the users of their products would receive great satisfaction and enjoyment by smoking their tobaccos.
The reason given by movant defendant, P. Lorillard Company, in support of its motion to dismiss is that plaintiff having admitted that her decedent did not use any of defendant's products after the year 1951,
the alleged rights of action against this defendant set forth in the first and second counts of the Complaint are barred by the applicable provisions of statutes of limitations of the Commonwealth of Pennsylvania, particularly the Act of 1895, June 24, P.L. 236 (12 P.S. § 34).
Where jurisdiction is based solely on diversity of citizenship, a recovery can not be had in a Federal court if a State statute of limitations would have barred recovery had the suit been brought in a State court.
Prior to the death of plaintiff's decedent the pertinent Pennsylvania Statute of Limitations in cases of personal injury would be the Act of June 24, 1895, P.L. 236 (12 P.S. § 34), which provides:
'Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury jury was done and not afterwards; in cases where the injury does result in death the limitation of action shall remain as now established by law.'
Plaintiff alleges in paragraph 6 of her Complaint that the survival action (First Count) is brought on behalf of the estate of decedent pursuant to the provisions of the Act of April 18, 1949, P.L. 512, as amended, apparently intending more specifically Section 603 of the Act.
Section 603 of the Act of 1949 (Fiduciaries Act), 20 P.S. § 320.603, provides:
'An action or proceeding to enforce any right or liability which survives a decedent may be brought by or against his personal representative alone or with other parties as though the decedent were alive.'
The Commission's comment on this section is that it is based on the repealed Section 35(b) of the Act of June 7,1917, P.L. 447, which, as amended (Acts of 1921, 1925 and 1937, see 20 P.S. Ch. 3, App. § 772), read in part:
'Executors or administrators shall have power * * * to commence and prosecute * * * all personal actions which the decedent whom they represent might have commenced and prosecuted * * *.'
In the language of the 1917 survival statute, amended as above, the personal action must have been one which the decedent could have commenced and prosecuted at the time of his death. The language of the Act of 1949, however, is even stronger in that the right of action ...