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decided: March 16, 1965.


Appeal from order of Court of Common Pleas of Bucks County, Jan. T., 1962, No. 555, in case of Dora DiBelardino, as administratrix of estate of Vincent DiBelardino, v. Lemmon Pharmacal Co., Wilson & Company, Inc. and John Sanson.


Thomas A. Reap, Jr., with him Maxwell P. Gorson, for appellant.

Frederick E. Smith, with him George V. Strong, Jr., John H. Potts, and Ross, Smith & Renninger, and Strong, Barnett and Grasberger, for appellee.

George P. Williams, III, with him William M. Power, Bernard G. Segal, and Schnader, Harrison, Segal & Lewis, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Musmanno joins in this dissenting opinion.

Author: Jones

[ 416 Pa. Page 581]

May a widow, as administratrix of her deceased husband's estate, institute an action for wrongful death in assumpsit based upon an alleged breach of an implied warranty of fitness for use? Such is the issue on this appeal.

On or about August 29, 1960, Lemmon Pharmacal Company (Drug Company), sold and delivered to Dr. John Sanson "two 5 cc. vials of 'Chyzyme Aqueous', thereby warranting and representing that said drug was safe and fit for use as an injection into human beings generally". On or about February 7, 1961, Vincent DiBelardino (decedent), purchased an injection of "Chyzyme Aqueous" from Dr. Sanson who injected the drug into decedent's body. Allegedly, the decedent died on the same day as a result of the injection of the drug.*fn1

Alleging that the drug injected into decedent's body was not fit for use in that it contained harmful and dangerous ingredients in breach of an implied warranty of fitness for use, decedent's administratrix instituted an assumpsit action in the Court of Common Pleas of Bucks County against the Drug Company. The complaint contained two counts: the first count was based

[ 416 Pa. Page 582]

    upon the so-called "Wrongful Death" statute,*fn2 and the second count was based upon the so-called "Survival" statute.*fn3 The Drug Company filed preliminary objections which raised three issues: (a) that an action of assumpsit did not lie under the "Wrongful Death" statute, supra; (b) that an action of assumpsit did not lie under the "Survival" statute, supra; (c) that no cause of action had been pleaded since there was no averment of any privity of contract between the decedent and the Drug Company. The court below upheld the preliminary objection on the ground that an action of assumpsit did not lie under the "Wrongful Death" statute and dismissed the other preliminary objections. From the order sustaining the preliminary objection this appeal has been taken.

Although the precise issue herein presented is of first impression in this Court,*fn4 on numerous occasions the language of the "Wrongful Death" statute has been construed by this Court.

At common law there was no right of action for damages for negligence resulting in death and no right in any one to recover damages for the death of another: Howard v. Bell Telephone Co., 306 Pa. 518, 160 A. 613; Potter Title & Trust Co. v. Petcoff, 122 Pa. Superior Ct. 540, 186 A. 320. "The purpose of the legislation [Acts of 1851 and 1855, supra]*fn5 was to provide for the recovery of compensation for loss for which the

[ 416 Pa. Page 583]

    common law furnished no redress": Minkin v. Minkin, 336 Pa. 49, 51, 7 A.2d 461.

The language of the Act of 1851,*fn6 supra, -- which created this new cause of action --, is of vital importance in determining the present issue. Section 19 provides: "Whenever death shall be occasioned by unlawful violence or negligence, and no suit for damages be brought by the party injured during his or her life", then the widow, or, in the absence of such widow, the personal representative may maintain an action for such damages. (Emphasis supplied).

Interpreting this statute, our Court has said: "What, in such cases, is the cause of action for which [the 1851 statute] authorizes the suit to be brought? Is it the death of the party, or is it the tort or wrongful act which results in his death? . . . We think it clear that the cause of action contemplated by the statute is the tort which produces death and not the death caused by the tort. It is true that the action will not lie unless death follows the wrongful act which occasions it, but death is not the tort but simply its consequence or result. The tort or wrongful act which our statute declares actionable is 'unlawful violence or negligence' causing or resulting in death. It is the tortious act or negligence of the wrongdoer, and not its consequence, that is the basis or ground of action which the statute authorizes to be brought": Centofanti v. Pennsylvania R. R. Co., 244 Pa. 255, 261, 262, 90 A. 558.*fn7

[ 416 Pa. Page 584]

In Gardiner v. Philadelphia Gas Works, 413 Pa. 415, 419, 197 A.2d 612, we have recently said: "In this Commonwealth we have always recognized that a personal injury claim based upon a breach of warranty is a distinct claim from a personal injury claim based on negligence: [citing authorities]." However, in Henderson v. National Drug Co., 343 Pa. 601, 610, 611, 23 A.2d 743, disposing of a contention that the drug company would be liable, even if not negligent, if the drug was not safe on the theory of a breach of warranty, this Court held that, unless the action is based upon an express warranty, an action against a drug company must be ex delicto and not ex contractu, the action being based upon a breach of duty imposed by law. Under Henderson, regardless of the "Wrong-Death" statute, the instant appellant, relying on a breach of implied warranty, would be restricted to an action of trespass rather than an action of assumpsit.*fn8

Regardless, however, of the holding in Henderson, our examination of the language employed in the "Wrongful Death" statute, viewed in the light of our case law, leads us to the conclusion that the statutory language restricts the right of action therein provided to an action in tort and that an action of assumpsit is inappropriate.*fn9 The language of Section 19, "death . . .

[ 416 Pa. Page 585]

    occasioned by unlawful violence or negligence", would have to be unduly strained and extended to encompass breaches of warranty for which assumpsit would lie. In our view, the legislature intended to create a right of action where death has resulted from a tortious act and that damages arising therefrom are recoverable only in an action of trespass.*fn10

We are fully aware that the 1851 statute, supra, is remedial in nature and thus subject to a liberal construction. However, that does not mean that we must, by construction, extend such statute to include a right of action so obviously not within the legislative intent as revealed by the statutory language. The cause of action under the statute rests upon "unlawful violence or negligence"; by the employment of such terms, the legislature intended the right of action under the statute to be redressed in a tort and not an assumpsit action.*fn11

Order affirmed.


Order affirmed.

[ 416 Pa. Page 586]

Dissenting Opinion by Mr. Justice Roberts:

I respectfully dissent because I believe that the majority takes an unduly restricted view of our Wrongful Death Statute*fn1 when it precludes this suit for breach of warranty. Admittedly, the language of our statute is somewhat different from that construed in other states where the question has arisen*fn2 and the case is not entirely free from doubt. But it is not at all an over extension to interpret the phrase "unlawful violence or negligence" as encompassing a death caused by an unsafe drug.*fn3 In every important sense, the death seems wrongfully caused. Cf. Greco v. S. S. Kresge Co., 277 N.Y. 26, 34, 12 N.E. 2d 557, 561 (1938).

This is all the more true because, as the majority notes, the statute is remedial in nature and therefore should be construed liberally. The remedial purpose is defeated by the construction accorded in this case.*fn4

[ 416 Pa. Page 587]

Certainly the intention of the Legislature was broad enough so that we may reasonably construe the statute as including warranty actions for wrongful death. In today's setting, we should allot to the statutory language, chosen 100 years ago, a meaning which will fully implement its intended effect. That purpose is surely not accomplished by the majority's interpretation, even though the language leaves ample room to effectuate the statute's purpose. To make the scope of the statute depend on constricted concepts exalts form over substance*fn5 and fails to grant judicial fulfillment to legislative intention.

[ 416 Pa. Page 588]

Very pertinently, Justice Cardozo has written: "Death statutes have their roots in dissatisfaction with . . . archaisms of the law . . . . It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied. There are times when uncertain words are to be wrought into consistency and unity with a legislative policy which is itself a source of law, a new generative impulse transmitted to the legal system. 'The Legislature has the power to decide what the policy of the law shall be, and if it has intimated its will, however indirectly, that will should be recognized and obeyed.' Its intimation is clear enough in the statutes now before us that their effects should not be stifled, without the warrant of clear necessity, by the perpetuation of a policy which now has had its day." (Footnotes omitted.) Van Beeck v. Page 588} Sabine Towing Co., 300 U.S. 342, 350-51, 57 S. Ct. 452, 456 (1937).

I am also of the belief that the privity argument which is advanced by appellee warrants a swift and final burial.*fn6

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