Appeals, Nos. 31 and 32, Jan. T., 1962, from order of Court of Common Pleas of Delaware County, March T., 1960, No. 839, in case of Alberta Frazier, administratrix of estate of Claude Frazier, deceased, v. Oil Chemical Co., Inc. Order affirmed.
Norman Shigon, for appellant.
Maurice Freedman, with him Deward F. Muller, Jr., Robert H. Arronson, and Herbert H. Hadra, for appellee.
Edward H. P. Fronefield, with him Joseph T. Labrum, Jr., William F. Keating, and Lutz, Fronefield, Warner & Bryant, for appellee.
Before, Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This appeal presents an interesting, albeit a narrow, issue: Do children born out of wedlock have a right to share in the recovery of damages for the death of their father in an action instituted under the survival and wrongful death statutes?
As personal representative of the estate of Claude Frazier, deceased, Alberta Frazier instituted an action,*fn1 under the survival statute*fn2 and the wrongful
death statute,*fn3 in the Court of Common Pleas of Delaware County against the Oil Chemical Co., Inc. for the recovery of damages arising from the death of Claude Frazier. As mother and natural guardian of Toni Frazier and Claudette Frazier, Mary Jane Frazier (appellant) petitioned the court to intervene in that action. The ground assigned for intervention was that Toni Frazier and Claudette Frazier are the illegitimate children of Claude Frazier, deceased, and that they "would be entitled to their proportionate share as children of, any damages recoverable for his death."*fn4 After a rule was granted to show cause why such intervention should not be allowed and answers filed,*fn5 the court below entered an order discharging the rule and refusing the intervention. From that order, these appeals were taken.
Our initial consideration shall be given to the claim for intervention in this action insofar as the survival statute is concerned. In Fisher v. Dye, 386 Pa. 141, 145, 125 A.2d 472, Chief Justice STERN stated: "... under the Survival Act the damages are measured by the pecuniary loss to the decedent, and whatever is recovered forms part of the decedent's estate: [citing cases]." (Emphasis supplied). These children seek to share in the recovery of damages for the death of their father; however, their right to share under the survival statute must be determined in a forum other than the common pleas court, i.e., the orphans' court. Their ...