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February 25, 1971

Steve J. KRAKAR, Jr., Administrator of the Estates of Agnes Breski and Stanley Breski, Deceased, Plaintiff,
DON SWART TRUCKING, INC., a corporation, Defendant

Weber, District Judge.

The opinion of the court was delivered by: WEBER

This case presents a cause of action brought solely under the Pennsylvania Survival Act [20 P.S. §§ 320.601-603] which provides that all causes of action shall survive the death of the party (with exceptions not relevant here). Under this Act the estate of a decedent is entitled to damages for the loss of earning power of a decedent for his life expectancy less the cost of his maintenance. Murray, Admr. v. Phila. T.C., 359 Pa. 69, 58 A. 2d 323 [1948]. In the event that the decedent contributed to the support of certain classes of dependents authorized to claim for the loss of pecuniary benefits under the Pennsylvania Wrongful Death Act [12 P.S. § 1601], such contributions must be deducted from earning capacity to avoid duplication of damage. Pezzulli v. D'Ambrosia, 344 Pa. 643, 26 A. 2d 659 [1942].

 Where both causes of action are asserted, if not brought in one action, they must be consolidated for trial, and if only one cause of action is asserted the court may stay that action until the other is brought or is barred by the statute of limitations. Pennsylvania Rule of Civil Procedure 213, 12 P.S. Appendix. These rules are a recognition of the common elements of evidence of damages applicable to both causes of action. Similarly a common party-plaintiff usually appears in both actions, the personal representative acting for the estate of the decedent in the Survival Action, and the personal representative as trustee ad litem for the designated beneficiaries in the Wrongful Death Action. Pennsylvania Rule of Civil Procedure 2202.

 Ordinarily we see both causes of action asserted in a single suit, even where a decedent left no surviving beneficiaries entitled to recover Wrongful Death Act damages because in such case the plaintiff may still assert a claim for medical and funeral expenses. 12 P.S. § 1602. However, the Wrongful Death cause of action is barred after one year from the date of death, [12 P.S. § 1603] whereas the Survival Act cause of action is not barred until two years from the date of injury causing death.

 In this case we have only a cause of action asserted under the Survival Act and damages must be limited to those recoverable under that Act. At Pretrial Conference the parties here submitted certain items of damage claims and certain proposed evidence in support of those claims to the court for a pretrial ruling to be binding upon the parties at the trial of the issue.

 Plaintiff claims as damages expenses of administration and expenses connected with the funeral.

 There is no authority under the Survival Act or the case law for allowing the inclusion of any funeral expenses or expenses of administration as an element of damages. The fact that such a claim is allowable under 12 P.S. § 1604 of the Wrongful Death Act, even in the absence of other Wrongful Death Act damages, gives no basis for including such a claim under the Survival Act. Radobersky v. Imperial Vol. Fire Dept., 368 Pa. 235, 81 A. 2d 865 [1951]:

"We view as entirely unsound the suggestion that the uncollectibility of all or part of the wrongful death claim because of the running of the statute of limitations or the disqualification of a party can add anything to the survival claim." Burns v. Goldberg, 210 F.2d 646, at p. 650 [3rd Cir., 1954].

 In an identical situation, where the statute of limitations had barred the Wrongful Death Action, the Supreme Court of Pennsylvania held that the administratrix could not recover the amount of the funeral bill in a survival action because this was not a claim which decedent could have brought during his lifetime. Skoda v. West Penn. Power Co., 411 Pa. 323, 336, 191 A. 2d 822 [1963].

 Therefore plaintiff is barred from asserting any claim for damages for the funeral bill, grave marker, other funeral expenses, and expenses of administration in this action.

 A second matter has been presented for pretrial ruling governing the trial of this case. The action involved the deaths of a 74 year old husband and his 61 year old wife. The husband was retired from active work and was receiving a retirement pension and social security benefits. The wife was still employed but would have been entitled to pension and/or social security benefits had she survived. The plaintiff proposes to introduce evidence of these benefits in support of his claim for damages, the defendant objects that they are not competent evidence in a Survival Action.

 In a large number of jurisdictions of the United States there is a single cause of action for death in which the measure of damages is the pecuniary loss caused by the death. In these jurisdictions it has been uniformly held that a decedent's income from a pension retirement plan payments, social security benefits and other receipts of a like nature, are to be considered along with other relevant factors in substantially the same manner as actual earnings in the calculation of pecuniary loss for the purpose of determining the recovery. See Annot.: "Pension, retirement income, social security payments and the like as affecting recovery in wrongful death action." 81 A.L.R. 2d 949, and cases cited therein. These rulings are limited to such pension income as terminates upon death and has no application to income from capital investments because this is not related to earning capacity and the income producing capital is not destroyed by the death. Sherin v. Dushac, 404 Pa. 496, 172 A. 2d 577 [1961].

 Such evidence is admitted in cases where the Pennsylvania Wrongful Death Act claim and the Survival Act claim were joined because the income or prospective future income from such a source was the income upon which the statutory beneficiaries depended. See Gatenby et al. v. Altoona Aviation Corp. et al., 277 F. Supp. 1011 [W.D. Pa., 1968], affd. 3 Cir., 407 F.2d 443 [1968]. It was also introduced without objection in the trial of Pongratz v. Boyer, 180 Pa. Super. 260, 119 A. 2d 813 [1956] and the appellate court refused to review the question. In Kowtko v. Delaware & Hudson R.R. Corp., 131 F. Supp. 95 [M.D. Pa. 1955] the court also admitted evidence of entitlement to future Veterans' Administration subsistence allowances.

 It does not seem to be seriously questioned that such evidence is competent in those jurisdictions having a single cause of action for death, and in those Pennsylvania cases where the Wrongful Death claim is present. Our question, on which we find no appellate authority from any jurisdiction, is whether retirement pension and social security benefits may be introduced as evidence of ...

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