Wasserman v. Tannenbaum

• Decision Date: 11 December 1952
• Docket Number: No. L--6308,L--6308
• Citation: 93 A.2d 812,23 N.J.Super. 599
• Parties: WASSERMAN VS v. TANNENBAUM et al.
• Court: New Jersey Superior Court

Page 599

23 N.J.Super. 599

93 A.2d 812

WASSERMAN VS v. TANNENBAUM et al.

No. L--6308.

Superior Court of New Jersey, Law Division.

Dec. 11, 1952.

Herbert Horn, Atlantic City, for the motion (Lloyd & Horn, Atlantic City, for defendants).

Samuel Backer, Atlantic City, opposed (Backer & Arkus and Harry A. Gaines, Atlantic City, for plaintiff).

WOODS, J.S.C.

On December 20, 1951 the late Irwin Wasserman and the defendant Stanley Tannenbaum left Syracuse University in New York State to travel to their homes in Atlantic City, New Jersey. The defendant Stanley Tannenbaum was driving the automobile owned by the defendant Jeannette Tannenbaum, and while crossing the State of Pennsylvania skidded and was involved in an accident as a result of which the said Irwin Wasserman sustained fatal injuries and died in a Binghamton, New York, hospital on the same date. He left surviving him his mother, Sadye Wasserman, and his father, Samuel Wasserman. All of the parties to this cause, including the deceased, were residents of and domiciled in this State at the time of the accident and down to the present time.

This action was instituted by Samuel Wasserman as administrator of his son's estate, having been appointed by the Surrogate for Atlantic County in New Jersey and as ancillary administrator appointed by the Register of Wills of Philadelphia County. The complaint sets forth four counts. The first count is brought by Samuel Wasserman as administrator of the estate of Irwin Wasserman for the benefit of himself and his wife as parents of the decedent, and recites the statutes of Pennsylvania under which recovery may be had on account of wrongful death. The second count is brought by Samuel Wasserman as administrator of the Estate of Irwin Wasserman for the benefit of the estate, and alleges the pertinent laws of the State of Pennsylvania. The third count is brought by Samuel Wasserman as ancillary administrator of the decedent, for the benefit of himself and his wife as parents of the deceased, and the fourth count is brought by Samuel Wasserman as ancillary administrator for the benefit of the estate.

The defendants have moved to dismiss the complaint on the ground that the plaintiff has no right to maintain the action as instituted, either in his capacity as general administrator or in his capacity as ancillary administrator appointed by the Register of Wills in Philadelphia, Pennsylvania; or if he is entitled to recover in any capacity, it would be one and not both and that he must make his election.

The general rule is that the law of the place where the accident resulting in death is committed (lex loci delicti) governs the right of the action for wrongful death and also the proper party to bring the suit. In re Carpenter's Estate, 142 N.J.Eq. 772, 61 A.2d 446 (E. & A.1948); Giardini v. McAdoo, 93 N.J.L. 138, 107 A. 437 (E. & A.1919); Morss v. Allen, 120 N.J.L. 203, 199 A. 414 (Sup.Ct.1938). Therefore, we must look to the statutes of Pennsylvania under which recovery may be had on account of wrongful death.

In their argument the defendants claim that the plaintiff as a New Jersey administrator may not institute suit against the defendants under the Wrongful Death Act of Pennsylvania, 12 P.S. § 1601 et seq. Title 2, page 488, Rule 2202 of the Rules of Civil Procedure of Pennsylvania supervenes the statutes so far as they are inconsistent therewith and provides:

'(a) Except as otherwise provided in clause (b) of this rule, an action for wrongful death shall be brought Only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.

'(b) If no action for wrongful death has been brought within six months after the death of the decedent, the action may be brought by the personal representative or by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.' (Emphasis ours.)

The defendants contend that in interpreting this Rule we must take into consideration the definition of the terms used in the rules pertaining to actions for wrongful death. Pennsylvania Rule of Civil Procedure 2201, p. 488, Purdon's Pennsylvania Statutes, Appendix, Title 12 provides:

"personal representative' means the * * * administrator * * * of the estate of a decedent, duly appointed by the Register of Wills of any county of this Commonwealth.'

The plaintiff contends that the defendants have not gone far enough in quoting the Pennsylvania statutes and rules in seeking an interpretation of the phrase 'an action for wrongful death shall be brought only by the personal representative of the decedent.' Counsel quotes Rule 2201--'Definitions':

'As used in this chapter 'action' means any civil action or proceeding at law brought in or appealed to any court of record which is subject to these rules.' "Action for wrongful death' means in the case of rules 2202, 2203 and 2206, an action arising under the laws of this Commonwealth and in the case of rules 2204 and 2205, an action arising under the laws of this Commonwealth or any other jurisdiction.'

and the official note of the Procedural Rules Committee:

'By the provisions of the Procedural Rules Act of June 21, 1937, P.L.1982, Sec. 1, as amended by the Act of March 30, 1939, No. 13, 17 P.S. § 61, these rules are applicable to the courts of common pleas of the several counties of this Commonwealth, the County Court of Allegheny County, the Municipal Court of Philadelphia and to such courts of civil jurisdiction as may be created in the future by the Legislature. By virtue of the above definition these rules are applicable only to courts of record.'

and also declares that Rule 2201 pertaining to definitions must be read in conjunction with other rules In pari materia, especially those expressly promulgated by the Pennsylvania Supreme Court for the interpretation of all rules of procedure. Counsel quotes Purdon's Pennsylvania Statutes, Appendix, Title 12, Rule 76--'Definitions':

'The following words and phrases when used in any rule promulgated by the Supreme Court under the authority of the Act of June 21, 1937, P.L.1982, as amended and supplemented, (17 P.S. § 61, et seq.), shall have the following meanings, respectively, unless the context clearly indicates otherwise or the particular word or phrase is expressly defined in the chapter in which the particular rule is included:

"administrator,' a fiduciary appointed under authority of law by a register of wills or other public authority to administer the estate of a decedent * * *.

"personal representative,' the executor or administrator of a decedent.'

Plaintiff asserts that from an examination of all the rules it is evident that the definition of 'personal representative' in Rule 2201 cannot possibly have any application to a case instituted in another state, and that to attribute to the definition extra-territorial effect so as to result in the destruction of the long established principles of interstate comity and of the public policy enunciated by the courts of Pennsylvania, New Jersey and other jurisdictions, cannot be implied.

The question which confronts us at this juncture is: May a suit be maintained in a New Jersey court by an administrator appointed in this State as the personal representative of the estate of a decedent who was killed in the State of Pennsylvania by the alleged negligent act of the defendant?

The action to recover damages for wrongful death is the creation of statute. To the statute we must resort to ascertain the nature of the right and the party in whom it is vested. Usher v. West Jersey R. Co., 126 Pa. 206, 17 A. 597, 4 L.R.A. 261 (Sup.Ct.Pa., May, 1889). It is the established rule in all jurisdiction that this established rule in all jurisdictions that this

The American Law Institute Restatement of Law, Conflict of Laws, § 396, page 483, states:

'If the death statute of the state of wrong provides that suit for the death shall be brought by the personal representative of the deceased, recovery can be had only by a person qualified to sue at the forum as personal representative of the deceased.'

The comment under this section is as follows:

'a. Any state which has jurisdiction over the defendant may appoint an administrator to prosecute an action for wrongful death under a statute of the place of wrong which creates such a cause of action in favor of the personal representative of the deceased.'

'c. If the death statute of the state of wrong names a particular representative to sue, such as the representative appointed in the state of injury, or at the domicile of the deceased, such representative is the only person who can sue; but such representative may sue in any state as the owner of a claim in trust for certain distributees.'

It is a well-established rule that a right of action for wrongful death may be enforced in the courts of a jurisdiction other than the one enacting the statute, but the law of the Lex loci delicti governs. Likewise, when a 'Death Act' statute provides that the suit shall be instituted by the personal representative, an administrator appointed in the state of the forum is a proper party plaintiff, except when otherwise provided by the law of the state in which the wrongful act occurred. See 85 A.L.R. 1231:

'And, generally speaking, the proper parties plaintiff must, in such action at the forum, be determined not by the lex fori, but by the lex loci delicti; so that, if by the lex loci delicti the action is to be maintained in the name of a representative, such representative (aside from the question as to what jurisdiction he must have been appointed in) is the proper party plaintiff to institute the action regardless of the fact that under the statute of the forum such an action must be instituted in the name of another person, since the statute of the forum has no extra-territorial operation, but applies only...