APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 72-654).
Adams, Hunter and Garth, Circuit Judges.
Although the immediate issue confronting us is whether the appeal was taken within time, the underlying issues involve the proper substitution of a party plaintiff and the abatement of a maintenance and cure action upon the death of a disabled seaman. The district court denied the motion for substitution of plaintiff and dismissed the action. We hold that the appeal was timely filed and, addressing the underlying issues, we reverse.
Plaintiff James Boggs served as a seaman aboard the motor vessel Freedom owned and operated by the Dravo Corporation (Dravo). In July, 1964 Boggs was stricken and hospitalized with a respiratory ailment.
Boggs instituted suit against Dravo for maintenance and cure and for damages under the Jones Act, 46 U.S.C. § 688. On November 27, 1968 judgment was entered for Boggs in the amount of $14,445.00 on the Jones Act claim and for $10,555.00 on the maintenance and cure claim for the period up to and including November 27, 1968. Thereafter, Boggs, claiming entitlement to further maintenance and cure, filed the present action on August 9, 1972. This latter action sought maintenance and cure from November 28, 1968.*fn1
Boggs died during the pendency of the present action.*fn2 On September 25, 1974 Dravo filed a Suggestion of Death pursuant to Fed. R. Civ. P. 25(a)(1). Boggs' counsel moved to substitute the Administratrix of Boggs' estate as plaintiff. Dravo opposed the motion arguing that the motion had been brought in the name of counsel rather than in the Administratrix's name and the Administratrix had not herself sought to be substituted. Thereafter on December 16, 1974, a second motion for substitution was filed. This motion was brought in the name of Rosalie B. Peterson, Administratrix of the Estate of James Boggs, deceased and sought substitution in her capacity as Administratrix.*fn3
On February 14, 1975, the district court denied both motions to substitute and dismissed the action "by reason of abatement upon the death of plaintiff."
On February 24, 1975, within the requisite ten-day time period prescribed by Fed. R. Civ. P. 59(e), the Administratrix timely filed a motion which sought to have the district court vacate its February 14, 1975 order.*fn4 This motion was similarly denied by the district court on April 16, 1975. The Administratrix filed her Notice of Appeal on May 14, 1975.
Dravo has moved in this Court to dismiss the Administratrix's appeal as untimely. Dravo contends that the Administratrix failed to file her notice of appeal within thirty days of the February 14, 1975 Order which denied her motion for substitution and which dismissed the action. Dravo also argues that the Rule 59(e)*fn5 post-dismissal motion (of February 24, 1975) made by the Administratrix was ineffective ...