Miller v. Gay

• Decision Date: 27 February 1984
• Parties: Nancy MILLER, Appellant, v. Robert L. GAY and Cynthia L. Doucette.
• Court: Pennsylvania Superior Court

Page 1353

470 A.2d 1353

323 Pa.Super. 466

Nancy MILLER, Appellant, v. Robert L. GAY and Cynthia L. Doucette.

Superior Court of Pennsylvania.

Argued Feb. 23, 1982.

Filed Dec. 16, 1983.

Reargument Denied Feb. 27, 1984.

Shelly Glenn Farber, Media, for appellant.

Werner H. Von Rosenstiel, Philadelphia, for appellees.

Before SPAETH, BROSKY and BECK, JJ.

BROSKY, Judge:

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. ¹ 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 ² 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.

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:

... The two most important factors look to the court's retention of the case. They are (1) that since it is for the plaintiff to choose the place of seat, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant's stipulation that he will not raise this defense in the second state.

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, ³ 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. ⁴

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.

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. 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. 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.

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,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

We have earlier discussed the relative policies of the forum and Delaware, the only other interested state and do not find them dispositive.

However, we do believe that certainty, predictability and uniformity of result will be aided by the application of Delaware law. We also find no difficulty in the application of that law.

We find no significant relationship to Pennsylvania that would call for application of its law rather than that of Delaware.

In Cipolla, supra 439 Pa. at 567, 267 A.2d at 854 the Supreme Court wrote, "Inhabitants of a state should not be put in jeopardy of liability exceeding that created by their state's laws just because a visitor from a state offering higher protection decides to visit there." ⁵ Analogously, we conclude that inhabitants of a state (here Delaware) should not be accorded rights not given them by their home states, just because a visitor from a state offering higher protection decides to visit there.

We are guided further by Pennsylvania's No-Fault Motor Vehicle Act ⁶ which states in relevant part:

The right of a victim or of a survivor of a deceased victim to sue in tort shall be determined by the law of the state of domicile of such victim. If a victim is not domicile in a state, such right to sue shall be determined by the law of the state in which the accident resulting in injury or damage to property occurs.

In Toter v. Knight, 278 Pa.Super. 547, 420 A.2d 676 (1980) we explained the effect of this statute as follows:

The provision embodies two choice-of-law principles: 1.) The right of the victim of a motor vehicle accident to sue in tort shall be determined by the law of his domicile; and 2.) if the victim is not domiciled in a state, the victim's right to sue shall be determined by the law of the state in which the accident occurred. Id. at 550, 551, 420 A.2d at 678.

In Toter the victim was domiciled in New Jersey and was injured in an automobile accident in Pennsylvania. We held that his right to sue in tort was to be determined by the law of New Jersey. ⁷

Similarly, we conclude that the law of appellant's domicile Delaware, governs the instant case.

Appellant also argues that even if Delaware law applies to this case, the Guest Statute restrictions do not. We have considered these arguments and reviewed the record before us. Because we believe that the trial court opinion adequately disposes of these questions, there is no further need for comment.

Order affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge, dissenting.

I should reverse the order of the trial court and permit appellant to proceed to trial, for in my view, Pennsylvania rather than Delaware law governs this action.

I am unable to join the majority's opinion for two reasons. First, the majority states that the choice of law rule contained in the...