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GALLICK v. UNITED STATES

January 29, 1982

Helen A. GALLICK, Trustee ad litem for heirs of George E. Gallick, Sr., Deceased, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: CONABOY

MEMORANDUM AND ORDER

This is an action for damages brought under the Swine Flu Act, formerly codified at 42 U.S.C. § 247b(j)-(l ) (1976), *fn1" and the Federal Tort Claims Act (hereinafter FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. Presently before the Court is a motion for summary judgment filed by the Defendant. *fn2" The basis of this motion is that Plaintiff's claim for relief is barred by the applicable statute of limitations. For the reasons set forth below, the Defendant's motion will be granted in part and denied in part.

 Our review of the materials submitted herein reveals the following facts to be undisputed. On November 21, 1976, at approximately 2:00 p.m., George Gallick, Sr. received the swine flu vaccination from public health officials at the Carbondale Area High School, Carbondale, Pennsylvania. His wife, Helen A. Gallick, the Plaintiff in this action, was with him when he received the inoculation. After receiving the swine flu injection, Plaintiff and her husband drove together to visit the gravesite of his deceased father. While at the cemetery, George E. Gallick, Sr. suffered a fatal heart attack and died at approximately 3:45 p.m.

 On February 8, 1979, Plaintiff filed an administrative tort claim with the United States Public Health Service pursuant to § 2675(a) of the FTCA, *fn3" seeking damages in the amount of $ 150,000. By letter addressed to Plaintiff's attorney, dated April 18, 1979, the claim was denied by the United States on the grounds that:

 
"A review of your client's claim indicates that it accrued more than two years prior to the date upon which it was presented. Consequently, any cause of action your client may have had is now barred by the provisions of 28 U.S.C. § 2401(b)."

 Thereafter, on November 28, 1979, Plaintiff filed a Complaint in this Court under the FTCA. As previously noted, the Defendant has moved for summary judgment arguing the same rationale for dismissal as set forth in the above letter, namely, that Plaintiff's claim is barred by the applicable statute of limitations.

 Initially, it is important to characterize the type of death action for which Plaintiff seeks recovery in this case. In doing so, we must look to the law of Pennsylvania since, under the FTCA, it is the law of the state where the act or omission took place which provides the applicable standards of substantive liability. 28 U.S.C. §§ 1346(b), 2672, 2674; Richards v. United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed. 2d 492 (1962); see also Hungate v. United States, 626 F.2d 60 (8th Cir. 1980); Di Salvatore v. United States, 456 F. Supp. 1079 (E.D.Pa.1978). Upon the death of an individual occurring in this state, two modes of legal action exist, as explained by the Supreme Court of Pennsylvania in In re Pozzuolo's Estate, 433 Pa. 185, 192, 249 A.2d 540 (1969):

 
In Pennsylvania there are two possible actions through the medium of which relatives, heirs and next of kin of a decedent can recover damages for the death of the decedent, i.e., a wrongful death action *fn4" and a survival action. *fn5" A wrongful death action is intended to secure compensation to certain-statutorily designated relatives of the decedent.... Any sum recovered in a wrongful death action does not become an asset of the decedent's estate ....
 
The second type of action is a survival action ..., which is brought by the personal representative of the decedent and is an action which decedent himself could have instituted had he survived. Since such an action is brought, in effect, on behalf of the decedent, the amount recovered becomes part of his estate .... (citations omitted).

 See also Pantazis v. Fidelity & Deposit Company of Maryland, 369 Pa. 221, 85 A.2d 421 (1952); McClinton v. White, 285 Pa.Super. 271, 427 A.2d 218 (1981). Although the survival and wrongful death statutes confer a right to recover damages growing out of a single incident, i.e., the negligence or other fault of the defendant causing the decedent's death, nevertheless, the rights of action are separate and distinct, and cumulative not alternate. Schwab v. Oesterling & Son, Inc., 386 Pa. 388, 392, 126 A.2d 418 (1956); McClinton v. White, supra, 427 A.2d at 222. *fn6"

 After reviewing the Complaint in the instant case, the Court finds that the Plaintiff has adequately pled a cause of action under both the wrongful death and survival statutes of Pennsylvania. While the Plaintiff has not clearly delineated his claims as such, nevertheless, such technical exactness is not necessary under federal rules of pleading, which require only that a plaintiff set forth a "short and plain statement" of his claim for relief. Fed.R.Civ.P. 8(a)(2). Moreover, under the rules, "(all) pleadings ... (are to) be so construed as to do substantial justice." Fed.R.Civ.P. 8(f). As noted by the Court in Jenkins v. Fidelity Bank, 365 F. Supp. 1391, 1398 (E.D.Pa.1973):

 
It is well established that a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. It is not necessary to set out a legal theory on which the claim is based.... A complaint is not to be dismissed because the plaintiff has misconceived the proper legal theory of the claim. But it is sufficient if it shows that the plaintiff is entitled to any relief which the court can grant, regardless of whether it asks for the proper relief. (citation omitted).

 See also American Medicorp, Inc. v. Humana, Inc., 445 F. Supp. 573, 587 (E.D.Pa.1977) ("Notice pleading necessarily requires that a complaint be liberally construed."); Kleinschmidt v. Universal Seafood Company, 201 F. Supp. 96, 99 (E.D.Pa.1961) (in determining whether complaint sufficiently alleges a survival action, Court "must consider the Complaint as a whole and interpret the pleading liberally."); see generally 5 C. Wright & A. Miller, Federal Practice and Procedure, § 1286 (1969). In addition to these principles of pleading construction, further support for our finding that Plaintiff intended to bring both a wrongful death and survival action can be gleaned from the administrative tort claim she filed on February 8, 1979, pursuant to 28 U.S.C. § 2675 *fn7" (Defendant's Brief, filed August 20, 1981, Exh. # 2). Therein Plaintiff clearly set forth, in Items 10(B) and 10(C), that her request for damages was based upon a "Survival Action" and "Wrongful Death" claim against the United States. *fn8" There is no indication from the record now before us that Plaintiff chose to abandon one of these causes of action when she subsequently filed suit in federal court. Thus, a fair reading and reasonable construction of the instant Complaint leads the Court to conclude that Plaintiff intended to and did sufficiently plead two distinct causes of action, one under Pennsylvania's Wrongful Death Act and another under the Survival Act. Having established this, we must now consider the merits of Defendant's statute of limitations defense as to each of these actions.

 As noted, the Swine Flu Act provides that claims for injuries due to the swine flu vaccine must be brought against the United States under the procedures of the FTCA. 42 U.S.C. § 247b(k)(2)(A). The limitations period for commencing an action under ...


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