Before BIGGS, Chief Judge, and KALODNER and GANEY, Circuit Judges.
Borror, named as administrator of the estate of Bonita Ann Curtician, brought suit by a single complaint under the Pennsylvania Survival Act, 20 P.S. § 320.601, and under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 et seq., to recover damages against Sharon Steel Company. The details of how Miss Curtician met her death need not be given here. It is sufficient to state for the purposes of the instant appeal that on July 20, 1960, there was an explosion at the Sharon Steel Company at Sharon, Pennsylvania, and as a consequence thereof Miss Curtician sustained injuries which resulted in her death on the same day. The complaint alleges that Sharon was negligent. Miss Curtician was survived by her mother and father.
The case was tried to a jury and resulted in a judgment in favor of the estate of Miss Curtician under the Survival Act in the sum of $10,000 and in a judgment in favor of Miss Curtician's mother and father under the Wrongful Death Act in the sum of $15,000. The judgment recovered under the Survival Act has not been appealed. The judgment recovered by the Curticians under the Wrongful Death Act is the subject of this appeal. In the court below the defendant, Sharon, moved for a directed verdict in its favor. The grounds of that motion are substantially the same, we believe, as those presented to this court by Sharon for a reversal of the judgment and for the dismissal of the action.
It is conceded that Miss Curtician was and her parents are citizens of Pennsylvania and that Sharon is a corporation of the Commonwealth, and further that Borror, the plaintiff, is a citizen of West Virginia, appointed administrator of Miss Curtician's estate by the Register of Wills*fn1 of Mercer County, Pennsylvania, and that he brought the Wrongful Death Act suit at bar as administrator. There is no contention that the suit at bar is a collusive one prohibited by Section 1359, 28 U.S.C., as was the contention in Corabi v. Auto Racing, Inc., 264 F.2d 784, 75 A.L.R.2d 711 (3 Cir. 1959), but the standing of Borror to maintain the suit has been brought into issue here as it was in Jaffe v. Philadelphia and Western R. Co., 3 Cir., 180 F.2d 1010 (1950), in Fallat v. Gouran, 3 Cir., 220 F.2d 325 (1955), in Corabi, supra, and to some extent at least in Berkowitz v. Philadelphia Chewing Gum Corporation, 3 Cir., 303 F.2d 585 (1962).
We have difficulty in grasping Sharon's theory of defense. The "Statement of Question Involved" in its brief states the following, which we believe embodies the substance of Sharon's position: "Where, as here, the Pennsylvania Wrongful Death Acts vest the cause of action for minor decedent's death in minor's parents, who were both Pennsylvania citizens at the time suit was brought, and defendant was also a citizen of Pennsylvania; and, where Pennsylvania Rule of Civil Procedure Rule 2202(b) gave the parents the right to sue for said wrongful death in their own names at the time this suit was brought; does the Pennsylvania Rule of Civil Procedure which permits wrongful death actions to be brought by the administrator on behalf of the parents make this a case or controversy between citizens of different states merely because the parents elected not to sue in their own names, but caused suit to be brought in the name of a citizen of West Virginia who has been appointed administrator of the minor's estate?" Sharon's answer to its own question is "no."
12 P.S. § 1602*fn2 provides that under the circumstances here present the parents of Miss Curtician are entitled to the recovery. Compare 12 P.S. § 1601*fn3 which provides that if suit under the Wrongful Death Act is not brought by the survivor's spouse, the suit may be brought by the administrator.
Rule 2201, Pa.Rules of Civil Procedure, 12 P.S.Appendix, defining the term "personal representative," states that "'personal representative' means the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth."
Rule 2202 provides: "(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death. * * * (b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages."
Rule 2203 providing procedure to remove a plaintiff in a wrongful death action states: "(a) Any person entitled by law to recover damages in an action for wrongful death may petition the court in which an action for such wrongful death is pending to remove the plaintiff and to substitute as a new plaintiff any person entitled by law to recover damages in the action or a personal representative of the decedent." Rule 2203(b) states: "After hearing, of which due notice shall be given to the plaintiff in the action and to all persons entitled by law to recover damages, the court may remove the plaintiff and order the substitution prayed for, if it deems the same advisable." A single note, appended to the text of the rule, 12 P.S.Appendix, p. 490, states: "This rule has the effect of making the plaintiff in the wrongful death action accountable to the court in which the action is brought for his conduct therein. In addition, it permits the parties beneficially interested in the damages recovered in the action to exercise some supervisory control over the conduct of the action by enabling them to obtain the assistance of the court if the action is not properly conducted on their behalf."
Rule 2205 provides: "When an action for wrongful death has been instituted, the plaintiff shall give notice, by registered mail or in such other manner as the court shall direct by general rule or special order, to each person entitled by law to recover damages in the action, that an action has been instituted for wrongful death, naming the decedent and stating the court, term and number of the action."
Rule 2206 provides in part: "(b) When as the result of a verdict, judgment, compromise, settlement or otherwise it has been determined that a sum of money is due the plaintiff in an action for wrongful death, the court, upon petition of any party in interest, shall make an order designating the persons entitled to share in the damages recovered and the proportionate share of the net proceeds to which each is entitled. * * *" "(d) When an order designating the persons entitled to share in the damages has been entered, the defendant may pay the amount due * * * to the plaintiff who shall hold the money as trustee for the persons designated in the order and shall mark the action discontinued or the judgment satisfied, as the case may be." It should be noted that the Rules Committee's "Note" to subsection (d) states that the rule in effect "eliminates the unsatisfactory rule of the prior law which permitted the nominal plaintiff in the action to receive the entire proceeds of the litigation, even though such person had only a fractional or no interest in such proceeds, without requiring such nominal plaintiff to give any security or to account in any way therefor." It will be observed that the plaintiff is said to hold the proceeds of the suit as a "trustee."
The Pennsylvania Rules of Civil Procedure were authorized by the Act of June 21, 1937, as amended, 17 P.S. § 61. The Act provides that the rules promulgated pursuant thereto "shall neither abridge, enlarge nor modify the substantive rights of any litigant nor the jurisdiction of any of the said courts * *."*fn4 Relying largely on the statute quoted, the gist of Sharon's position appears to be that the administrator, Borror, is not a real party in interest but at best a kind of next friend or guardian ad litem, in short, a kind of very nominal plaintiff, and that although he has a procedural standing to maintain the suit at bar, the controversy is not between him and Sharon but between Sharon and Miss Curtician's parents, who are the real parties in interest, and that there is no justiciable controversy between citizens of different states in the case at bar within the meaning of Section 1332, Title 28 U.S.C. But the use of such a term as "nominal" can lead to much difficulty because Rule 2201 defines the "personal representative" as meaning an executor or administrator of the estate of a decedent and that personal representative is undoubtedly qualified by law to bring such an action as that at bar within the Commonwealth of Pennsylvania. He is the master of the litigation. Once he has started it he is compelled to account for his conduct and may be removed for good cause shown. He may oppose his own removal since it is required that he be given notice of any attempt to remove him.See Rule 2203(b) quoted above. He prosecutes the action for named ...