of fact, summary judgment is inappropriate on this question. See Ciccarone v. United States, supra, 486 F.2d at 256. Accordingly, Defendant's motion for summary judgment as to this cause of action will be denied.
To summarize, we hold today that Plaintiff's FTCA Complaint sufficiently alleges a cause of action under both the Wrongful Death Act and the Survival Act of Pennsylvania. Further, we find that the former claim is time-barred under 28 U.S.C. § 2401(b) since an action was not filed within two years after it accrued. Finally, the Court concludes that as to Plaintiff's survival claim, a "genuine issue of material fact" exists regarding the date of accrual of this cause of action. We will therefore grant Defendant's motion for summary judgment as to Plaintiff's cause of action under the Wrongful Death statute, but deny it as to her cause of action under the Survival Act.
An appropriate Order will be entered.
ON RENEWED MOTION FOR SUMMARY JUDGMENT
This is an action for damages brought under the Swine Flu Act, formerly codified at 42 U.S.C. § 247b(j)-(l ) (1976),
and the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. On November 28, 1979, Plaintiff filed a Complaint in this Court pursuant to the FTCA in which causes of action were alleged under the Wrongful Death
statutes of Pennsylvania.
By Memorandum and Order filed January 29, 1982, the Court granted summary judgment in favor of the Defendant as to the Wrongful Death Act claim, but denied the same with respect to Plaintiff's cause of action under the Survival Act. Presently before the Court is a renewed motion for summary judgment filed by Defendant as to the Survival Act claim. For the reasons set forth below, this motion will be granted.
A brief review of the factual and procedural background of this case is necessary to put the instant motion in its proper perspective. 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, 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 it was barred by the applicable statute of limitations, 28 U.S.C. § 2401(b).
Thereafter, on November 28, 1979, Plaintiff filed a Complaint under the FTCA with this Court.
On August 20, 1981, Defendant filed a "Motion to Dismiss, or in the alternative, for Judgment on the Pleadings and/or for Summary Judgment," accompanied by a supporting brief.
Opposition and reply briefs were also filed by the litigants and, after careful consideration of the arguments contained therein, this Court filed a Memorandum and Order disposing of this motion on January 29, 1982. See Gallick v. United States of America, 542 F. Supp. 188 (M.D.Pa., 1982). In this opinion, we initially found that the Plaintiff's Complaint did sufficiently plead a cause of action under both the Wrongful Death and Survival Acts of Pennsylvania. Id. at 190-191. After establishing this, we then considered the merits of Defendant's statute of limitations defense as to each of these actions. As to the wrongful death action, we first held that this claim was time-barred by the two-year limitations period of § 2401(b). Under this limitations provision of the FTCA, the law is clear that a wrongful death claim accrues on the date of death. See Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981). Since it was undisputed that Plaintiff did not file an administrative tort claim until more than two years after the date of the death of her husband, summary judgment was granted in favor of the Defendant on this claim. Gallick v. United States of America, supra, at 191.
Regarding Plaintiff's cause of action under the Survival Act, the Court held that this action may still be viable under the United States Supreme Court's holding in United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), which recognized the propriety of applying the "discovery rule" in personal injury cases under the FTCA.
We found, therefore, that the Plaintiff's contention that she did not know of the existence of a causal connection between her husband's death and the swine flu injection until she received the opinion of her family physician, sometime in March of 1979, raised a factual issue that precluded summary judgment on this part of the Complaint. Gallick v. United States of America, supra, at 191-192.
On February 18, 1982, the Defendant filed a renewed motion for summary judgment, accompanied by a supporting brief, as to the remaining Survival Act claim. Citing the Pennsylvania Supreme Court's recent decision in Anthony v. Koppers Co., Inc., 496 Pa. 119, 436 A.2d 181 (1981), Defendant contends that no cause of action may be maintained under the Pennsylvania Survival Act where knowledge of the cause of the deceased's injury is not discovered until after his death. (Defendant's Brief, Doc. # 26, p. 3). Plaintiff answers this motion not by contesting this interpretation of the Koppers holding, but by arguing that it should not be given retrospective application because to do so would adversely affect the rights of the Plaintiff, which had "vested" before the Koppers decision. (Plaintiff's Brief, Doc. # 27, p. 3). In O'Brien v. Eli Lilly & Company, 668 F.2d 704 (3d Cir. 1981), the Third Circuit, in a footnote, interpreted Koppers to mean:
(T)hat because survival actions merely permit a decedent's personal representative to enforce the cause of action that accrued before the decedent's death, where the knowledge of the causal connection between the injury and its cause is not discovered until after the decedent's death, no action has accrued that can be preserved under the survival statutes. 668 F.2d at 706, n. 2.