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NANCY MILLER v. ROBERT L. GAY AND CYNTHIA L. DOUCETTE (12/16/83)

filed: December 16, 1983.

NANCY MILLER, APPELLANT,
v.
ROBERT L. GAY AND CYNTHIA L. DOUCETTE



No. 1290 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4654 December 1980

COUNSEL

Shelly Glenn Farber, Media, for appellant.

Werner H. Von Rosenstiel, Philadelphia, for appellees.

Spaeth, Brosky and Beck, JJ. Spaeth, J., files a dissenting opinion.

Author: Brosky

[ 323 Pa. Super. Page 468]

This action was commenced by appellant, Nancy Miller, who seeks damages for injuries she suffered in an automobile accident that occurred in Glascow, Delaware in January, 1979. At the time of the accident Miss Miller was a passenger in an automobile driven by appellee Robert L. Gay. Miss Miller is a Delaware resident; Mr. Gay resides in Pennsylvania.*fn1 Mr. Gay filed preliminary objections to the complaint alleging that Delaware law should be applied in this case and the complaint dismissed because the Delaware Guest Statute*fn2 precludes recovery by Miss Miller.

The lower court dismissed the complaint on the grounds of "forum non conveniens" and said that even if the forum were found to be proper, it would dismiss the complaint based on the Delaware statute. For the reasons that follow, we affirm the order.

We note initially that we would not have dismissed this action on "forum non conveniens" grounds. Although the lower court opinion discusses many of the factors to be applied in determining the appropriateness of the forum chosen by the plaintiff, see e.g. Plum v. Tampax, Inc., 399 Pa. 553, 160 A.2d 549 (1960), it does not mention what the Plum opinion says is one of the most important factors.

[ 323 Pa. Super. Page 469]

Citing the Restatement, Second, Conflict of Laws, (Tentative Redraft No. 4, April 5, 1957), comment to Section § 117(c), the Plum court stated at 560, 561, 160 A.2d at 553:

See also Daugherty v. Inland Tugs, 240 Pa. Super. 527, 359 A.2d 465 (1976).

Both Pennsylvania and Delaware have two year statutes of limitation as to personal injury actions,*fn3 which have now run in this case. Dismissal of this complaint should not rest on forum non conveniens grounds when such a decision results in the plaintiff being unable to institute an action elsewhere.*fn4

We nevertheless agree with the result reached by the lower court.

The lower court applied a "significant relationship" test to the facts of this case and concluded that Pennsylvania does not have such a relationship with the parties or occurrence.

[ 323 Pa. Super. Page 470]

In Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964) our Supreme Court abandoned the "lex loci delicti" rule that had been employed in choice of law questions and adopted the "significant relationship" theory. That is, the court refused to automatically apply the law of the place in which the incident occurred; but instead analyzed the policies and interests underlying the particular issue before the court. Id., 416 Pa. at 21, 203 A.2d at 805.

The sole connection with Pennsylvania in the instant case is that appellee, one of two named defendants, resides here.

In contrast, the accident occurred in Delaware. The plaintiff and one defendant reside there, and the lower court found the relationship between the injured Miss Miller and Mr. Gay was centered in Delaware.

Of course, we must do more than merely count contacts. See Cipolla v. Shaposka, 439 Pa. 563, 267 A.2d 854 (1970). The weight of the contacts is to be measured qualitatively rather than quantatively. Id., 439 Pa. at 566, 267 A.2d at 856.

In Cipolla as in the present case, the underlying issue involved application of the Delaware Guest Statute. The accident had occurred in Delaware. The court said that because the statute does not provide a "rule of the road," the situs of the accident is not a relevant contact. We must not, therefore, rely upon situs of the occurrence in our case.

In Cipolla the guest resided in Pennsylvania and the court said Pennsylvania's policy permitting guest recovery made this Commonwealth a concerned jurisdiction. Similarly, the driver was a resident of Delaware, making its host-protecting policy relevant.

The reverse situation exists in the present case. The driver is a resident of Pennsylvania, which has a guest-protecting policy and the guest is a resident of host-protecting Delaware.

Under these circumstances we believe neither state seems to have a significant relationship as to the issue of guest vs. host protection.

[ 323 Pa. Super. Page 471]

We return to Griffith, supra for guidance as to how to proceed in the face of this seemingly neutral situation.

The Griffith court cites, apparently with approval, Section 379a of the Restatement, Second which provided

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particular issue involved, in which event the local law of the latter state will govern.

Id. 416 Pa. at 15, 203 A.2d at 802, 3.

Section 146 of the Restatement Second (adopted by the American Law Institute in May, 1969 and replacing § 379(a) cited in Griffith), in its present form, contains substantially similar language adding a test to be applied to determine whether a state other than the situs has a significant relationship to the occurrence or the parties. It provides:

In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

Section 6 states:

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable law include.

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relevant interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

[ 323 Pa. Super. Page 472]

(e) the basic policies underlying the particular ...


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