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KLEINSCHMIDT v. UNIVERSAL SEAFOOD CO.

December 29, 1961

Margaret KLEINSCHMIDT, Administratrix Ad Prosequendum and General Administratrix in the Matter of the Estate of Dale Kleinschmidt, Deceased, et al., Plaintiffs,
v.
UNIVERSAL SEAFOOD COMPANY, Inc., a corporation of the State of Pennsylvania, Daniel Diorio and Noel Lo Castro jointly, severally and in the alternative, Defendants



The opinion of the court was delivered by: LUONGO

Before us are defendants' motions *fn1" to dismiss portions of plaintiff's complaint for failure to state a cause of action and as barred by the Statute of Limitations.

On March 23, 1961, various members of the Kleinschmidt family filed a complaint in twenty-eight counts against defendants for injuries and, in one case, death resulting from allegedly poisoned fish prepared and sold by defendants. The motions before us are directed only to the first eight counts of the complaint, four counts by Margaret Kleinschmidt as Administratrix ad Prosequendum, and four counts by Margaret Kleinschmidt as General Administratrix of the estate of decedent, Dale Kleinschmidt.

 Plaintiff's theories of the case are that defendants negligently and/or in breach of a warranty and/or in breach of a statutory duty sold poisoned fish which, when eaten by Dale Kleinschmidt, caused his death. The fish was purchased in New Jersey and apparently was consumed and death occurred in that state. *fn2" Federal jurisdiction is based on diversity, plaintiff being a New Jersey citizen, while individual defendants are Pennsylvania citizens and corporate defendant is a Pennsylvania corporation. The requisite jurisdictional amount is alleged.

 Since, apparently, injury and death occurred in New Jersey, a Federal Court sitting in Pennsylvania must apply New Jersey law to determine whether a cause of action exists and the capacity of the party authorized to initiate proceedings. Moran v. Pittsburgh-Des Moines Steel Co., 166 F.2d 908 (3rd Cir. 1948); Beach, Adm'x v. Grollman, 169 F.Supp. 612 (D.C.E.D.Pa. 1959); Brennan, Adm'r v. Rooney, 139 F.Supp. 484 (D.C.E.D.Pa.1956); Foley v. Pittsburgh-Des Moines Co., 363 Pa. 1, 68 A.2d 517 (1949). Pennsylvania and New Jersey permit recovery of damages both in a wrongful death action and in a survival action. 12 P.S. § 1601, 20 P.S. § 320.601; N.J.S.A. 2A:31-1 & 2, N.J.S.A. 2A:15-3.

 New Jersey law authorizes an action for wrongful death to be brought by an Administrator ad Prosequendum for damages caused by a wrongful act, neglect or default of another which results in death. N.J.S.A. 2A:31-1 & 2. The action is '* * * for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. * * *' N.J.S.A. 2A:31-4.

 The first four counts of the complaint contain the following:

 (a) an allegation of death caused by a wrongful act, neglect and/or default;

 (b) an intestate decedent leaving no surviving spouse or children;

 (c) an action instituted by an Administratrix ad Prosequendum on behalf of those entitled to take under the intestate law, i.e. parents, brothers and sisters.

 The first four counts clearly set forth and constitute a wrongful death action. Pennsylvania law requires that such actions be instituted within one year of decedent's death. 12 P.S. § 1603. New Jersey law permits suit to be instituted within two years. N.J.S.A. 2A:31-3.

 Plaintiff contends that the New Jersey and the Pennsylvania wrongful death statutes differ in substance, the former permitting recovery for death caused by a wrongful act, neglect or default, the latter only for death caused by violence or negligence. Plaintiff contends, therefore, that the Pennsylvania Statute of Limitations should not apply.

 We see no merit in the argument that because Pennsylvania's death statute may give greater or lesser substantive rights than some foreign death statute, Pennsylvania should not, as the forum state, apply her own Statute of Limitations. Pennsylvania applies a one year limitation to death actions, domestic and foreign. A death action, simply stated, is a statutory right granted to certain enumerated classes of persons of recover damages from one who wrongfully causes another's death. Whether the wrong stems from a breach of contract or from a negligent act does not affect the character of the action, it remains a death action. That being so, we are bound to apply Pennsylvania's limitation period. Wells v. Simonds Abrasive Co., 345 U.S. 514, 73 S. Ct. 856, 97 L. Ed. 1211 (1953); Beach, Adm'x v. Grollman, 169 F.Supp. 612 (D.C.E.D.Pa.1959).

 Since the instant action was commenced almost two years after death, it is barred by the Pennsylvania Statute of Limitations. Rosenzweig, Adm'r v. Heller, 302 Pa. 279, 153 A. 346 (1931).

 Defendants' motion to dismiss the first four counts of the complaint will be granted on the ground that those counts are ...


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