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May 20, 1985


The opinion of the court was delivered by: POLLAK


 On July 16, 1984, plaintiffs Delores Carroll, the widow of Henry Carroll and the administratrix of his estate, and Gladys Johnson filed a suit in this court against Adrian Colon. Federal jurisdiction was alleged on the basis of diversity of citizenship -- plaintiffs being citizens of Pennsylvania while defendant is a citizen of New Jersey. The complaint alleges that Henry Carroll and Gladys Johnson were injured on July 17, 1982 when the defendant's car struck the vehicles which they were driving. *fn1" Gladys Johnson sought to recover directly for her injuries while Delores Carroll brought suit in her capacity as administratrix of Henry Carroll's estate to recover the damages which he could have recovered for his injuries had he survived to bring suit. Delores Carroll also sought to recover expenses which she had incurred as a result of Henry Carroll's injuries and death.

 The complaint was served on defendant on October 29, 1984 and defendant filed a motion to dismiss the complaint on November 19, 1984. The motion contended that the complaint had failed adequately to allege a claim under either the Pennsylvania Wrongful Death Act or the Survival Act for the injuries to Henry Carroll. The motion did not address the sufficiency of the claims asserted by plaintiff Gladys Johnson but the attached proposed order would have dismissed the entire complaint.

 Plaintiffs did not respond to this motion until January 31, 1985. On that same day, a status conference was held in this case at which time the parties were informed that the motion to dismiss would be granted and that plaintiffs would have until February 5, 1985 to file an amended complaint which corrected the substantial pleading defects identified by defendant's motion. This ruling was memorialized in an Order dated February 1, 1985.

 Plaintiffs filed an amended complaint on February 4, 1985. This was met by another motion to dismiss. Plaintiffs responded to that motion and defendant has since filed a reply brief.

 The current motion to dismiss contends (1) that the pleading defects identified in the first complaint have not been corrected fully in the amended complaint and (2) that the statute of limitations has expired on plaintiffs' claims because the limitations period was not tolled by the filing of the original complaint.

 Defendant first argues that the amended complaint is inadequate in that it confuses the elements of a claim for wrongful death and those for a survival action and in that it fails to allege certain essential elements of such claims. Pennsylvania recognizes two distinct causes of action which may accrue following the death of an individual when such death is caused by the wrongdoing of another. A wrongful death claim may be brought by the spouse, children or parents of the deceased to recover "for the death of an individual caused by the wrongful act or neglect or unlawful violence of another." 42 Pa. Cons. Stat. Ann. § 8301. A survival action may be brought by the administrator of the estate of the deceased to recover the damages which the decedent could have recovered for injuries sustained by him during his life. 42 Pa. Cons. Stat. Ann. § 8302.

 Count I of the amended complaint appears to join these two types of claims into a single count. It contains allegations of injury to Henry Carroll which caused him to lose earnings and earning capacity and which caused him to sustain pain and suffering. Such damages are only recoverable in a survival action. In addition, Count I contains claims for recovery of damages suffered by the decedent's estate. Those damages are alleged to have accrued as a consequence of his death and would generally be recoverable solely through a wrongful death action.

 It appears, however, that the allegations of Count I contain all of the elements necessary for a survival claim. For example, that count alleges injuries to Henry Carroll caused by an automobile accident which was allegedly the result of defendant's negligence. The complaint also states that no action was brought to recover for these injuries during Henry Carroll's life. Furthermore, the complaint cites to the Pennsylvania Survival Act as the basis for the cause of action alleged in Count I. Therefore, I conclude that although Count I contains allegations which are unnecessary to a valid survival claim, it contains sufficient allegations to state such a claim and should not be dismissed merely because it includes extraneous allegations.

 But the amended complaint does not contain allegations sufficient to state a claim under the Wrongful Death Act. In particular, the amended complaint fails to allege that Henry Carroll's death (as opposed to the injuries occasioned by the automobile accident) was in any manner caused by the alleged negligence of defendant. Consequently, I will dismiss the amended complaint to the extent it seeks to recover under the Pennsylvania Wrongful Death Act. Hereinafter, the allegations in Count I will be treated solely as allegations in support of a survival claim and only such damages as would be recoverable in a survival action will be available to plaintiffs under this count.

 Defendant's motion also contends that the statute of limitations bars all of the claims set forth in the amended complaint. In support of this position, defendant cites to the "well settled" principle that a complaint dismissed without prejudice is to be treated as if it had never existed for purposes of the statute of limitations. E.g., Dupree v. Jefferson, 215 U.S. App. D.C. 43, 666 F.2d 606 (D.C. Cir. 1981); Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191 (8th Cir. 1976); Sabo v. Parisi, 583 F. Supp. 1468 (E.D. Pa. 1984); DiSabatino v. Mertz, 82 F. Supp. 248 (M.D. Pa. 1949). Therefore, defendant argues, since the claims presented through the survival action accrued on the date that Henry Carroll was injured by defendant's allegedly negligent actions -- July 17, 1982 -- the filing of the amended complaint on February 4, 1985 was the first date on which the statute of limitations would have been tolled. Because this date is more than two years after the date of the injury to Henry Carroll, defendant asserts, the survival claim is barred by the statute of limitations. 42 Pa. Cons. Stat. Ann. § 5524(2) (two-year statute of limitations for personal injury action). *fn2"

 Plaintiffs' response to the most recent motion to dismiss does not address this aspect of defendant's motion. However, dismissal of a claim on the ground that the statute of limitations has expired should not occur unless it is clear from the face of the complaint that the statutory period has elapsed and that there was no basis for tolling the running of the limitations period.

 The Court of Appeals for the Third Circuit recently addressed the issue raised by defendant's motion in Cardio-Medical Associates v. Crozer-Chester Medical Center, 721 F.2d 68 (1983). In an opinion by then Chief Judge Seitz, the court concluded that an amended complaint filed after a Sherman Act claim was dismissed without prejudice due to deficiencies in its jurisdictional allegations could not present a jury demand when no jury demand was made in the original complaint. The court noted:

a well recognized principle that a statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice. As regards the statute of limitations, the ...

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