McCardle v. Aldinger

35 Pa. D. & C.4th 421, 1996 Pa. Dist. & Cnty. Dec. LEXIS 89
CourtPennsylvania Court of Common Pleas, Blair County
DecidedOctober 11, 1996
Docketno. 95 S 1328
StatusPublished

This text of 35 Pa. D. & C.4th 421 (McCardle v. Aldinger) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Blair County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCardle v. Aldinger, 35 Pa. D. & C.4th 421, 1996 Pa. Dist. & Cnty. Dec. LEXIS 89 (Pa. Super. Ct. 1996).

Opinion

KOPRIVA, J.,

Before this court for disposition are preliminary objections filed by both defendants. The court heard oral argument on August [423]*42323,1996. The issues raised by the defendants are nearly identical and we frame them as follows:

(I) Whether the wrongful death and survival actions should be stricken as not encompassed by the writ of summons and therefore not properly served on the defendants?

(II) Whether the complaint should be stricken for failure to comply with Pennsylvania Rules of Civil Procedure 1020?

(III) Whether the complaint fails to set forth a claim for punitive damages?

(IV) Whether the complaint fails to set forth a cause of action for negligent infliction of emotional distress?

(V) Whether the general allegations of negligence should be stricken?

Complaint in this medical malpractice action was filed on April 1,1996. The allegations contained therein pertain to alleged malpractice regarding the prenatal care provided to plaintiff Nicole McCardle. Mrs. Mc-Cardle received care from the defendant from April 1993 until October 25, 1993, when her baby was stillborn. It is claimed the infant’s death, in útero, on or about October 25, 1993, is attributed to the negligent prenatal care provided by the defendants. The complaint attempts to set forth causes of action for wrongful death and survival on behalf of decedent Russell McCardle in addition to the individual claims of the parents Nicole and Kevin McCardle for negligence.

I.

This lawsuit was commenced on October 16, 1995 by the filing of a writ of summons. The writ was properly served. The writ listed as plaintiffs Nicole McCardle and Kevin McCardle, her husband. The defendants both [424]*424filed rules upon the plaintiffs to file a complaint. The instant complaint was docketed on April 1,1996. Upon reviewing the complaint, it is clear the action is filed on behalf of the death of their child and not solely for the individual claims of the parents, as the writ would lead one to believe. The defendants argue the complaint is not properly served to commence an action on behalf of the estate of Russell McCardle.

We frame the issue not as one of “service,” but rather as whether the writ of summons encompassed the actions on behalf of the decedent. Defendants assert the writ commenced a lawsuit only for the parents in their individual capacities. The writ makes no reference to the estate of Russell McCardle or that his parents are maintaining suit on behalf of the estate. Therefore, defendants assert the claims for wrongful death and survival should be stricken as the complaint was not properly served as original process. We note it is not disputed the writ was properly served as original process. The defendants’ argument rests on their belief the writ does not encompass the wrongful death and survival claims.

Plaintiffs respond to this argument by claiming that counsel for defendants was aware of the nature of the cause of action. They assert the caption fairly reflects the two persons lawfully entitled and logically situated to bring suit for the death of their child. “That the McCardles were not formally designated as co-administrators of their son’s estate at the time suit was commenced is immaterial, for it was very certain that they as named plaintiffs would become co-administrators of the estate and that the complaint would eventually be filed in that capacity.” (Plaintiffs’ brief in opposition p. 6.)

Plaintiffs assert that if the caption must list the McCardles as administrators of their son’s estate, the [425]*425appropriate remedy is to grant them leave to amend. This court would agree that is a logical solution but for the fact that the statute of limitations has run. The question now becomes: Is the captioning of the estate merely a technical amendment, or does it amount to the addition of a new plaintiff after the statute has expired?

Clearly, the caption of this action as it appears on the writ of summons is inconsistent with the allegations contained in the complaint. The appropriate caption should read, “Nicole McCardle and Kevin McCardle, her husband, as co-administrators of the estate of Russell McCardle and Nicole McCardle and Kevin McCardle in their own right.” Such a caption, had it appeared on the writ of summons, would leave no room for doubt as to the potential claims to be raised in a subsequent complaint. Is the addition of the “estate” to the caption appropriate, or does it amount to adding a new party to this lawsuit after the statute has expired?

In considering this issue, we must examine the nature of wrongful death actions as opposed to survival actions. They are clearly separate and distinct causes of action. Frey v. Pennsylvania Electric Company, 414 Pa. Super. 535, 607 A.2d 796 (1992), alloc. denied, 532 Pa. 645, 614 A.2d 1142 (1992). In a survival action, the decedent’s estate sues on behalf of the decedent for claims the decedent could have pursued but for his or her death. Id. Survival actions pursue recovery for loss to the estate resulting from a tort. Kiser v. Shulte, 538 Pa. 219, 648 A.2d 1 (1994).

An action for wrongful death is for the benefit of specified relatives of the decedent to recover damages in their own behalf, and not as beneficiaries of the [426]*426estate. Frey, supra. The statute, 42 Pa.C.S. §8301, specifies at subsection (b) that the right of action “shall exist for the benefit of the spouse, children or parents of the deceased.” In the instant action, the named plaintiffs are the only individuals with a right of recovery under a wrongful death claim.

After an exhaustive search of the case law, we have reached the conclusion that plaintiffs may amend the caption to pursue the wrongful death claim, but they may not pursue the survival action. The amendment necessary to properly caption the death action is a technical amendment and does not add a party to this lawsuit. Usner v. Duersmith, 346 Pa. 494, 31 A.2d 149 (1943). Any damages recovered through the death action go to the parents and are not an asset of the estate. The death action is the parents’ statutorily created cause of action for monetary loss they sustained as a result of the death of their child.

On the other hand, the survival action is for the benefit of the decedent’s estate and the parents have no individual standing to maintain this claim. Stredny v. Wyeth Laboratories, 58 D.&C.2d 665 (1972). A survival action must be brought by the administrator of the estate to benefit the estate itself. In re Estate of Merryman, 669 A.2d 1059 (Pa. Commw. 1995); Guiton v. Pennsylvania National Mutual Casualty Insurance Co., 301 Pa. Super. 146, 447 A.2d 284 (1982). The estate is a separate “individual” and was not named as a party in the original writ of summons. The complaint at issue, by pleading a survival action, necessitates the presence of the estate in the action.

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Related

Kiser v. Schulte
648 A.2d 1 (Supreme Court of Pennsylvania, 1994)
Rizzo v. Haines
555 A.2d 58 (Supreme Court of Pennsylvania, 1989)
McDaniel v. Merck, Sharp & Dohme
533 A.2d 436 (Supreme Court of Pennsylvania, 1987)
Frey v. Pennsylvania Electric Co.
607 A.2d 796 (Superior Court of Pennsylvania, 1992)
Cheney v. Carver
88 A.2d 746 (Supreme Court of Pennsylvania, 1952)
Sinn v. Burd
404 A.2d 672 (Supreme Court of Pennsylvania, 1979)
Love v. Cramer
606 A.2d 1175 (Superior Court of Pennsylvania, 1992)
Usner v. Duersmith
31 A.2d 149 (Supreme Court of Pennsylvania, 1943)
In re Estate of Merryman
669 A.2d 1059 (Commonwealth Court of Pennsylvania, 1995)
Guiton v. Pennsylvania National Mutual Casualty Insurance
447 A.2d 284 (Superior Court of Pennsylvania, 1982)
Hoffner v. Hodge
407 A.2d 940 (Commonwealth Court of Pennsylvania, 1979)

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Bluebook (online)
35 Pa. D. & C.4th 421, 1996 Pa. Dist. & Cnty. Dec. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccardle-v-aldinger-pactcomplblair-1996.