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December 20, 1976

Gertrude SHENANDOAH, Administratrix of the Estate of Leroy Shenandoah, Deceased

The opinion of the court was delivered by: FULLAM

 FULLAM, District Judge.

 The plaintiff in this action is the mother of the late Leroy Shenandoah. She is also the Administratrix of his estate, pursuant to letters of administration issued by the Register of Wills of Philadelphia County. The decedent was shot and killed by a Philadelphia police officer on March 2, 1972, during a confrontation which occurred on a balcony-fire escape of a center city hotel in front of numerous witnesses. For reasons which have never been explained, decedent lay on the balcony for some time after the shooting without any medical attention whatsoever. When the police finally brought him to the emergency room of a hospital two blocks away, he was pronounced dead of shock due to loss of blood. He had been shot five times.

 The original Complaint asserted a civil rights claim on behalf of the decedent's estate. *fn1" Subsequently, plaintiff amended the Complaint to add claims arising under the Pennsylvania survival and wrongful death statutes (20 Pa.C.S.A. § 3371 and 12 P.S. § 1601 et seq., respectively). The state claims are not merely pendent to the federal civil rights action; they are properly before the Court by virtue of the parties' diversity of citizenship. 28 U.S.C. § 1332.

 Shortly before the case was scheduled to proceed to trial, the parties began, at my suggestion, to explore in earnest the possibility of settlement. Because the case entailed numerous issues which I would be called upon to decide at trial, I did not participate in settlement negotiations, but turned the role of mediator over to my colleague Judge Edward R. Becker. Through his diligent efforts and the cooperation of counsel, the parties agreed to settle the case for $130,000. Judge Becker memorialized the settlement in a Memorandum filed June 2, 1975. He did not attribute the settlement to any single claim or divide the fund between or among the various causes of action asserted in the Amended Complaint, although he did suggest that plaintiff's negligence claims were a good deal stronger than her civil rights theory of recovery.

 On June 26, 1975, plaintiff petitioned this Court for approval of her proposal for distribution of the settlement proceeds. She urged that, after deduction of costs and counsel fees, the entire fund be given to her husband and herself, as decedent's parents, *fn2" "pursuant to the usage, practice, law and custom of the Onondaga Tribal Nation. . . ." *fn3" On June 30, 1975, an objection to the petition was delivered to my office, in the form of a letter from counsel for one Ann Bush Schenandoah LaForce. *fn4" To my knowledge the objection was never formally filed with the Clerk of the Court. The gist of the letter was that Mrs. LaForce had married the decedent in 1957 and remained his "legal" wife until he died. (She remarried in 1973.) She claimed a surviving spouse's share of the settlement proceeds (relying on Pennsylvania law) and requested a hearing on the petition to permit the presentation of evidence in support of her claim. I granted the request and set the matter down for hearing on July 11, 1975.

 At the hearing, Ann LaForce testified that she and the decedent lived together as spouses "at least" during the last seven months of his life and that they had done so, although intermittently, for the bulk of their marriage. She attributed the sporadic nature of their cohabitation to decedent's migratory employment pattern; he often lived for months at a time in different cities while employed as an ironworker on bridge and skyscraper construction projects. Several of Mrs. LaForce's relatives and acquaintances testified in support of her claim. Also at the hearing, and apparently for the first time, Mrs. LaForce asserted a claim on behalf of Mitchell David Shenandoah, a child born to her in 1967, on the theory that he was the legitimate issue of her marriage with decedent and, as such, entitled to share in the settlement proceeds.

 The plaintiff and her witnesses bitterly disputed this evidence. According to them, Ann LaForce deserted her husband in 1964 while he was serving in the military, and never again lived with him as his wife. Her son, they charged, was fathered by another man, and her egregious misconduct in the form of abandonment and adultery, was such that she had forfeited any right to claim a share in her husband's estate or the proceeds of an action for his wrongful death. *fn5" In support of this argument they pointed out that at a "Dead Feast" held shortly after decedent's death, the Onondaga tribal council had distributed decedent's real and person effects to his parents, and that Mrs. LaForce, who within several days of the death had visited the reservation and taken possession of a snowmobile which she claimed to have purchased jointly with the decedent in February 1972, was prevailed upon by the tribal council to return that item to decedent's parents in accordance with the decree of the Dead Feast. *fn6" Alternatively, plaintiff argued that Mrs. LaForce had forfeited her rights as surviving spouse under the laws of New York or Pennsylvania, whichever this Court deemed controlling, if it were not persuaded to follow Indian law. In further rebuttal to Mrs. LaForce's evidence on the issues of cohabitation and condonation two sisters of the decedent testified that, for the last five years of his life, their brother lived, not with his legal wife, but with a series of two other women, and that each of these liaisons produced a child and appeared to be an exclusive relationship while it lasted.

 At the close of the hearing of July 11, I made several observations from the Bench which I specifically addressed to the parties as well as their attorneys. I said, first, that this bitter intrafamily dispute struck me as unseemly and was a dishonorable reflection upon the decedent's memory. I then urged the parties to agree upon a sensible, fair distribution of the settlement fund, one which would achieve the equity that "Mr. Shenandoah presumably would have wanted were he still alive." (Tr. 194.) Thereupon, I adjourned the hearing, but agreed to leave the record open for a suitable period of time to permit the filing of additional evidence.

 At the parties' request, a second hearing on this matter was held on September 29, 1975, at which time both sides filed supplemental documents and produced new witnesses. Among the witnesses produced by the plaintiff at the second hearing were Roseanne Shenandoah and Deena J. Shenandoah. It was decedent's relationships with these two women about which his sisters had testified at the first hearing.

 In the course of the hearing on September 29, Ann LaForce admitted that it was biologically impossible for decedent to have fathered her son Mitchell. She also conceded that Roseanne Shenandoah was the mother of decedent's son, Marcus Lee Shenandoah (born in Ohio in 1969), and that Deena J. Shenandoah was the mother of decedent's daughter, Melinda Jill Shenandoah (born in New York in 1971). Mrs. LaForce admitted that in 1971 and 1972, up to the time of his death, decedent "lived with" Deena J. Shenandoah, but insisted that he also "lived with" her (Ann LaForce) during that time.

 The parties rested at the end of the hearing on September 29, and in the course of final argument I asked counsel to submit post-hearing briefs addressed to the following issues: whether the widow, Ann LaForce, had forfeited her right to share either in the decedent's estate or in the proceeds of the action for his wrongful death; whether the settlement fund should be characterized as the proceeds of either action, or both (and, in the latter case, in what proportions); *fn7" and what form the distribution would take, under the laws of New York and of Pennsylvania, in any and all of these hypothetical situations. *fn8"

 In this Memorandum and Order I will authorize distribution of the settlement proceeds, but not as proposed by the plaintiff. My conclusions, discussed more fully below, are as follows: (I) The settlement fund should be attributed solely to the action for wrongful death; (II) New York law, not Pennsylvania or Indian law, governs distribution of the wrongful death proceeds and determines the widow's right to share in those proceeds; (III) under New York law, Ann LaForce does not qualify as a surviving spouse and is not, therefore, a statutory beneficiary of the action for wrongful death; and, finally, (IV) the persons entitled to share in the wrongful death proceeds, in the amounts set forth in the Order of distribution, are decedent's two minor children and his parents.

 I. Characterization of the Fund

 The parties are in accord in submitting to this Court for decision, as a matter of discretion, the allocation of the proceeds of the settlement among the three causes of action asserted in the Amended Complaint. In my view, the proper starting point for this determination is an analysis of the basis upon which the settlement was reached, and not necessarily an independent evaluation of the merits of the various causes of action asserted. Moreover, since we are concerned primarily with matters of distribution of the proceeds, no useful purpose would be served in attempting to explore the extent, if any, to which the measure of damages for a civil rights violation might exceed the measure of damages, under state law, for the tort which constituted the violation of civil rights. It is apparent that the settlement assumed that the measure of damages would be substantially identical. It is also reasonably clear that Judge Becker regarded the tort cause of action under state law as the cause of action upon which the defendants were most vulnerable; his views are entitled to great weight in these proceedings. Moreover, it is reasonable to conclude that the defendants' payment of the settlement was more probably viewed by them as an acknowledgment of potential liability for negligence, than for a violation of the constitutional rights of the deceased. For all of these reasons, I have concluded that there is no necessity for assigning a separate value to the civil rights claim.

 It bears emphasis that this is not a case, like Strickland v. City of Easton, supra, which poses the question of whether the civil rights claim does have value irrespective of the settlement or other disposition of the state claims. Rather, this is a case in which the parties, for purposes of distribution, are willing to assume that the measure of damages for an unconstitutional deprivation of life is essentially the same as for tortious deprivation of life. The significant issue in the present case is the proper apportionment of the settlement proceeds as between the survival and wrongful death actions.

 In nature and purpose, these two actions are "entirely dissimilar," notwithstanding their common roots in the law of negligence. See Pezzulli v. D'Ambrosia, 344 Pa. 643, 647-48, 26 A.2d 659 (1942). While the survival action compensates the decedent's estate for various categories of damage sustained by that person alone, the wrongful death action is designed solely to deal with the economic impact of the death upon those who were dependent upon the decedent during his lifetime. Had this case been tried, the two actions would have been consolidated for trial, Pa.R.Civ.P. 213(e), but the jury would have been required to bring in separate verdicts, Frankel v. Burke's Excavating, Inc., 223 F. Supp. 945 (E.D.Pa.1963).

 Recovery under the survival action is limited to compensation for conscious pain and suffering, medical expenses, and the present value of the difference between decedent's gross earnings had he survived, and his lifetime expenditures for his own support and for the support of his dependents. See Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206, 444 Pa. 299 (1971). The interval between injury and death was quite brief; there was little or no evidence of conscious pain and suffering; there is no evidence of significant medical expenses; and, of course, there was no loss of earnings between injury and death.

 The decedent was 32 years old at the time of his death, and had a life expectancy of approximately 34.9 years. He was earning $12,000 per year, at the wage levels then prevailing. Since his death, the union of which he was a member has secured at least one additional increase. On the other hand, decedent had experienced many periods of unemployment, as might be expected in the construction industry. More significantly, it is clear that throughout his working life, the decedent's expenditures for his own living expenses and for the support of his family, always seemed to consume his entire income.

 Thus, as a practical matter, the pecuniary losses suffered by the statutory beneficiaries clearly constitute the major portion of the damages sustained. These losses, together with the funeral expenses, are recoverable only in the wrongful death action. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963).

 I have therefore concluded that the entire settlement should be attributed to the wrongful death action. Two additional factors may be mentioned which, while not relied upon as reasons for this decision, are nevertheless additional advantages: By allocating the entire proceeds to the wrongful death action, it is possible to avoid questions of administration and taxation of the decedent's estate and, as will be discussed below, other legal problems of great difficulty and complexity, viz, the inheritance rights of acknowledged illegitimate ...

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