Fierstein v. Piper Aircraft Corporation, Civ. A. No. 2974.

• Decision Date: 01 September 1948
• Docket Number: Civ. A. No. 2974.
• Citation: 79 F. Supp. 217
• Parties: FIERSTEIN v. PIPER AIRCRAFT CORPORATION et al.
• Court: U.S. District Court — Western District of Pennsylvania

79 F. Supp. 217

FIERSTEIN v. PIPER AIRCRAFT CORPORATION et al.

Civ. A. No. 2974.

District Court, M. D. Pennsylvania.

September 1, 1948.

Richard B. Sheridan and John C. Phillips, both of Wilkes Barre, Pa., for plaintiff.

Walter W. Harris, of O'Malley, Harris, Harris & Warren, all of Scranton, Pa., for defendants.

WATSON, District Judge.

The Plaintiff in her complaint alleges that on August 17, 1946, at the Chemung County Airport, Elmira, New York, a collision of a Piper Super Cruiser and a Navy Glider, caused by the negligence of an employee agent and servant of the Piper Aircraft Corporation, resulted in the death of Stanley C. Fierstein. Plaintiff's claim for relief is based on the New York Decedent Estate Law, Consol.Laws, c. 13, Art. 5, Sec. 130:

"The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued. Such an action must be commenced within two years after the decedent's death."

Plaintiff has moved to amend the caption of the summons and complaint so that same will read, "Lee Fierstein, as Executrix of the Last Will and Testament of Stanley Charles Fierstein, A Citizen and Resident of the State of Texas" instead of "Lee Fierstein, A Citizen and Resident of the State of Texas", and to amend Paragraphs Sixteen and Twelve of the Complaint to describe the Plaintiff as "executrix of the last will and testament of the deceased". The Defendants oppose the motion on the ground that the amendments will create a new cause of action and add a new party to the record as plaintiff after the expiration of the Statute of Limitations.

The Pennsylvania Statute, Act of 1855, P.L. 309, 12 P.S. § 1603, granting a right of action for wrongful or negligent death, fixes the time for the institution of such action within one year after the decedent's death. The Pennsylvania Statute applies as to the time for the institution of this action, and the motion to amend, filed July 19, 1948, came after the expiration of the statutory period, and there arises the question whether or not such amendments introduce a new cause of action.

Leave of the Court to amend pleadings "shall be freely given when justice so requires", Federal Rules of Civil Procedure, rule 15(a), 28 U.S.C.A. following section 723(c). Also the Court shall "at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe" 28 U.S.C.A. § 777, R.S. § 954. Under these rules, it is permissible to change by amendment the character and capacity in which a party sues where a new cause of action is not introduced. Gibbs v. Emerson Electric Mfg. Co., D.C. W.D.Mo., 31 F.Supp. 983; Brown v. New York Life Ins. Co., D.C.N.J., 32 F.Supp. 443; Hartmann v. Time, Inc., D.C., E.D. Pa., 64 F.Supp. 671; 47 C.J. 243, Section 471. Furthermore, the spirit of all the Federal Rules of Civil Procedure is to settle controversies upon their merits rather than to dismiss actions on technical grounds, to permit amendments liberally, and to avoid if possible depriving a litigant of a chance to bring his case to trial. Wilson v. Lamberton, 3 Cir., 102 F.2d 506; Moore v. Illinois Central R. R. Co., D.C.S. D.Miss., 24 F.Supp. 731; Kuenzel v. Universal Carloading & Distributing Co. Inc., D.C.E.D.Pa. 29 F.Supp. 407.

It is of paramount importance to consider whether the allowance or denial of an amendment would or would not work any injustice on any of the parties. Overfield v. Pennroad Corp., D.C., E.D.Pa., 39 F.Supp. 482.

Before the present Federal Rules of Civil Procedure the denial of a motion similar to the present one by the District Court for the District of New Jersey was reversed by the Circuit Court of Appeals, Third Circuit, in Van Doren v. Pennsylvania R. R. Co., 3 Cir., 93 F. 260, 267. In that case, action for damages for the death of Henry Van Doren was brought by Laura Van Doren in her capacity as administratrix. She was both widow of the deceased and administratrix of his estate. Assuming that the Pennsylvania and not the New Jersey Wrongful Death Statute, applied, the Plaintiff asked to amend and change her capacity to widow. This request by the Plaintiff was denied by the District Court. The Circuit Court of Appeals in the opinion, said inter alia, "There is abundant authority to the effect that under a general power to allow amendments necessary for the determination of the real question in controversy between the parties, an amendment touching the capacity in which the plaintiff sues or declares should, when properly applied for, be permitted where substantial justice requires it. * * * Substantial justice requires that such an amendment should be allowed, as a second suit for damages for the death of Henry Van Doren would be barred by the one year limitation in the Pennsylvania statute." In Jacobs v. Pennsylvania R. R. Co., D.C.Del., 31 F.Supp. 595, 596, the father of the deceased brought suit in his capacity as administrator of the deceased's estate. After both the Delaware and Pennsylvania Statutes of Limitations had expired, the Plaintiff was permitted to amend substituting the parents as plaintiffs, as required by the Pennsylvania Statute. In allowing the amendment the Court said, inter alia, "Modern authorities favor allowing amendments to prevent failure of justice, especially where the statute of limitations has run. The suggested amendment would not set up a new cause of action or change the legal theory of recovery in any particular. The defendant already has notice of all the pertinent facts as stated in the original declaration."

In the present proceeding, the Defendants largely rely on that which was held in Rosenzweig, Administratrix v. Heller, 302 Pa. 279,...