In Re Carpenter's Estate., 245.

• Decision Date: 03 September 1948
• Docket Number: No. 245.,245.
• Citation: 61 A.2d 446
• Parties: In re CARPENTER'S ESTATE.
• Court: New Jersey Supreme Court

61 A.2d 446

In re CARPENTER'S ESTATE.

No. 245.

Court of Errors and Appeals of New Jersey.

Sept. 3, 1948.

Appeal from Prerogative Court.

Proceeding in the matter of the estate of Paul L. Carpenter, deceased. From an order of the Prerogative Court denying petition of Hans Stanko for vacation of appointment of Gertrude A. Carpenter as administratrix ad prosequendum of the estate of Paul L. Carpenter, deceased, petitioner appeals.

Order affirmed.

Bruce A. Wallace, and Rocco Palese, both of Camden (Carl Kisselman, of Camden, of counsel), for appellant Hans Stanko.

Isadore H. Hermann, of Camden, for respondent Gertrude A. Carpenter.

JACOBS, Justice.

This is an appeal from the action of the Prerogative Court denying the petition of appellant, Hans Stanko, for an order vacating the appointment of respondent, Gertrude A. Carpenter, as administratrix ad prosequendum of the estate of Paul L. Carpenter, deceased.

On November 30, 1945, Paul L. Carpenter was fatally injured in an automobile accident in the State of Pennsylvania. In November, 1946, the respondent, Gertrude A. Carpenter, resident within the State of New Jersey, filed her petition for appointment as administratrix ad prosequendum alleging that she is the widow of Paul L. Carpenter, that there are five children surviving, and that she desired to institute an action for damages against Hans Stanko and Ralph Stanko, owner and operator of the automobile involved in the accident, resulting in her husband's death. On November 12, 1946, an order was entered in the Prerogative Court granting letters of administration ad prosequendum to the respondent. Thereafter, Gertrude A. Carpenter instituted an action for damages against Hans Stanko and Ralph Stanko in the United States District Court for the Eastern District of Pennsylvania and that action is now pending.

In September, 1947, the appellant Hans Stanko filed, in the court below, notice and petition to vacate the order granting letters of administration ad prosequendum, alleging that the decedent was a resident of Pennsylvania at the time of his death and that, in view of his non-residence, the non-residence of Hans and Ralph Stanko, and the occurrence of the accident outside New Jersey, the Prerogative Court had no jurisdiction to grant the Letters. Cf. R.S. 3:7-13, N.J.S.A. Without passing on this contention, the court below, citing In re Walsh, Prerog. 1942, 131 N.J.Eq. 376, 25 A.2d 424, denied the petition on the ground that the appellant, as a potential debtor in an action for wrongful death, had no standing to challenge the validity of the original grant of letters. The present appeal seeks to reverse that action.

Since the accident occurred in the State of Pennsylvania, it is clear that the right of action for wrongful death is governed by the laws of that state rather than ours. See Giardini v. McAdoo, Err. & App. 1919, 93 N.J.L. 138, 140, 107 A. 437; Morss v. Allen, Sup., 1938, 120 N.J.L. 203, 205, 199 A. 414. It is equally clear that all of the pertinent issues relating to the cause of action resulting from the accident may be fully determined, and all of the substantial rights of the appellant, as the alleged tortfeasor, may be fully protected in the action now pending in the United States District Court for the Eastern District of Pennsylvania. See Stafford v. Roadway Transit Co., D.C.W.D.Pa.1947, 70 F.Supp. 555; Id., 3 Cir., 1948, 165 F.2d 920; Suders v. Campbell, D.C.M.D.Pa.1947, 73 F.Supp. 112. Any questions relating to the plaintiff's capacity to maintain her pending action are proper ones for determination by the Federal Court under the controlling statutes and decisions of the State of Pennsylvania. Cf. Cooper v. American Air Lines, 2 Cir., 1945, 149 F.2d 355, 162 A.L.R. 318; Coburn v. Coleman, D.C.W.D.S.C.1947, 75 F.Supp. 107.

The accident having occurred on November 30, 1945, it is conceded that under Pennsylvania law any new action against appellant is barred by limitations. See Piacquadio v. Beaver Valley Service Co., 1946, 355 Pa. 183, 49 A.2d 406; Stafford v. Roadway Transit Co., supra. In the light of this circumstance, coupled with the fact that the appellant may have full protection of his interests in the pending Federal Court Action, we fail to see how his substantial rights have, in any wise, been adversely affected by the action of the court below. Cf. Loughney v. Thomas, Err. & App. 1936, 117 N.J.L. 169, 172, 187 A. 329; In re Barmeier's Estate, 1936, 248 App.Div. 636, 288 N.Y.S. 318, 319, affirmed 1936, 272 N.Y. 601, 5 N.E.2d 351. Indeed, neither in his brief, nor in his argument has the appellant suggested that the lower court's issuance of Letters has harmed or prejudiced him; on the contrary, his contention rests entirely on the ground that it constituted ‘legal error.’ This, however, ignores entirely the recognized and broadening judicial concepts which disfavor procedural moves calculated to defeat a just determination on the ultimate merits and under which nonprejudicial error, not affecting the substantial rights of the appellant, does not constitute cause for reversal. Cf. Loughney v. Thomas, supra.; Cammarata v. Public Service Co-Ordinated Transport Err. & App.1940, 124 N.J.L. 38, 41, 11 A.2d 253; Hartford Accident & Indemnity Co. v. Benevento, Err. & App.1945, 133 N.J.L. 315, 323, 44 A.2d 97.

In the Cammarata case an action under the death act was instituted shortly after the accident, in the name of an administrator ad prosequendum, who was not, however, actually appointed until long afterwards when the Statute of Limitations had run and the case was about to be tried. This court, speaking through Mr. Justice Parker, declined to reverse a judgment...