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March 31, 1972

Helen MASCUILLI, Administratrix of the Estate of Albert Mascuilli, Deceased, Plaintiff,
UNITED STATES of America, Defendant

Ditter, District Judge.

The opinion of the court was delivered by: DITTER


DITTER, District Judge.

 Albert Mascuilli, a longshoreman, was killed while working aboard the USNS Marine Fiddler in the port of Philadelphia on May 1, 1959. Shortly thereafter, Helen Mascuilli, his wife and administratrix, brought the present action to recover damages that resulted from his death. After three adjudications by this court, three by the Court of Appeals, and one by the Supreme Court, *fn1" the matter is now before this court to have those damages assessed.

 When a husband and father is killed by a negligent act, two separate rights of recovery are created. In a survival action, the decedent's estate seeks reimbursement for the damages he suffered by reason of injury and death, and in a wrongful death action, his dependents sue for the losses they sustained by the termination of decedent's life. In the instant case, however, death did not result from negligence for which the defendant was responsible, but from unseaworthiness, and the question is whether damages are therefore to be computed on some different basis or by the same scales.

  Historically, dependents who claimed the wrongful death benefits for a longshoreman killed in territorial waters were limited by conditions imposed by the law of the state where the death occurred: The M/V Tungus v. Skovgaard, 252 F.2d 14 (3rd Cir. 1957), aff'd 358 U.S. 588, 79 S. Ct. 503, 523, 3 L. Ed. 2d 524 (1959). In the instant case, this would mean that Mascuilli's family could recover nothing for his wrongful death because the Pennsylvania Wrongful Death Act, the Act of April 15, 1851, P.L. 669, 12 P.S. § 1601 et seq., was held to apply only to deaths resulting from defendant's negligence. This was the precise holding of the most recent Court of Appeals decision in this case. *fn2" However, all prior rulings in this matter, and all those similar to it, must be reconsidered in the light of Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970), which held that a right of action for wrongful death exists under the principles of maritime law. Specifically, Moragne permitted dependents of a longshoreman killed in Florida waters to recover their losses stemming from his death as a matter of maritime law despite a state law that would have denied relief.

 Although Moragne held that damages should be allowed under the principles of maritime law, it did not determine precisely how the remedy was to be fashioned and used. For example, the Court did not decide which statute of limitations was applicable, if any, or what elements of loss might be recovered by the decedent's dependents. Moragne pointed out that a considerable body of law exists under various state wrongful death statutes, as well as federal decisions under the Death on the High Seas Act, 46 U.S.C. § 761 et seq. *fn3" and left to further lower court decisions the job of forming the extent and limitations of the remedy.

 With this background in mind, I turn to the various elements which must be considered in making an award for wrongful death in this case. I believe that both the Pennsylvania Wrongful Death Act and the Death on the High Seas Act must be considered. Both allow recovery for "pecuniary loss" sustained by the decedent's family as a result of his death. *fn4" I conclude pecuniary loss encompasses the following:


(1) Loss of financial support the decedent would have contributed to family members: Skoda v. West Penn Power Company, 411 Pa. 323, 334, 191 A. 2d 822 (1963); National Airlines, Inc. v. Stiles, 268 F.2d 400 (5th Cir. 1959).


(2) Loss of services to the widow: Gaydos v. Domabyl, 301 Pa. 523, 530, 152 A. 549 (1930); Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 S. Ct. 192, 57 L. Ed. 417 (1913).


(3) Funeral expenses: Act of May 13, 1927, P.L. 992, 12 P.S. § 1604; Kotal v. Goldberg, 375 Pa. 397, 100 A. 2d 630 (1953). *fn5"


(4) Nurture and guidance to children: Spangler v. Helm's New York-Pittsburgh Motor Express, 396 Pa. 482, 485, 153 A. 2d 490 (1959); Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, 588 (2d Cir. 1961), cert. denied, 368 U.S. 989, 82 S. Ct. 606, 7 L. Ed. 2d 526 and 370 U.S. 937, 82 S. Ct. 1577, 8 L. Ed. 2d 806 (1962).

 Loss of Financial Support Decedent's family is entitled to the present worth of the financial support he would have provided during his expected life. Based upon his income in the years prior to his death, I computed decedent's average income as follows: 1956 Tax Return $ 6,217.00 1957 Tax Return 6,227.15 1958 Tax Return 5,035.05 1959 -- Projected (Based on earnings of $2,405.95 until time of death) 7,217.85 Total, 1956-59 $24,697.05 Average, 1956-59 6,174.26 10% allowance for future increases 617.44 Average income after 1959 $ 6,791.70


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