No. 158 January Term, 1979, Appeal from the Order of the Superior Court dated December 14, 1978 at No. 1571 October Term, 1978, Affirming the Order of the Court of Common Pleas of Montgomery County, dated April 25, 1978 at No. 77-9250.
Howard E. Kalis, III, Steven J. Proctor, Pottstown, for appellants.
Edward F. Kane, Norristown, for appellee.
Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., did not participate in the consideration or decision of this case. Larsen, J., filed a dissenting opinion in which Kauffman, J., joins.
The question at issue in this case is whether there is a right of recovery under the Pennsylvania Survival Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa. C.S.A. § 3371 or the Wrongful Death Act of April 15, 1851, P.L. 669, § 19, 12 P.S. § 1601 on behalf of a stillborn child who died as a result of injuries received en ventre sa mere.
The pertinent facts of the case as alleged in the complaint are as follows. On May 27, 1976, Donna R. Scott, appellant, was operating an automobile in Montgomery County when she was injured in a head-on collision which occurred when appellee's automobile crossed the center of the highway and struck Mrs. Scott's automobile. At the time of the accident, Mrs. Scott was eight months pregnant. As a result of the collision, Mrs. Scott's child died in utero on or about May 27, 1976 and was stillborn on May 29, 1976 after an induced labor. Count one of the appellants' complaint seeks recovery under the Wrongful Death Act, supra, for the anguish of the parents occasioned by the loss of their child, for pecuniary loss, for medical and funeral expenses. Count two demands recovery under the Survival Act, supra, for loss of earnings and for pain and suffering of the deceased. The third count of the complaint seeks recovery for physical and mental injuries to Donna R. Scott. In the fourth count of the complaint Perry M. Scott seeks damages for anguish and personal loss, for hospital and funeral expenses, including possible future medical expenses for his wife, Donna R. Scott, and for the loss of assistance and society of his wife. The trial court dismissed the wrongful death and survival actions and the Superior Court affirmed. This appeal followed the Final Order of the Superior Court.
The Survival and Wrongful Death Acts, supra, effective at the time of the accident in this case,*fn1 provide as follows:
§ 3371. Actions which survive
All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
§ 1601. Action may be brought after death of party injured
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, the widow of any such deceased, or if there be no widow, the personal representatives may maintain an action for and recover damages for the death thus occasioned.
Appellants concede that this case is governed by Carroll v. Skloff, 415 Pa. 47, 202 A.2d 9 (1964) and Marko v. Philadelphia Transportation Company, 420 Pa. 124, 216 A.2d 502 (1966), which do not permit survival or death actions in the case of a stillborn infant, but request that this Court overrule these cases and permit recovery under the Wrongful Death and Survival Acts for death of a child who is stillborn as the result of injuries ...