*1 Perry Scott, M. SCOTT and Donna R. Trustees ad
litem, Appellants, KOPP, Appellee. Donald O.
Supreme Pennsylvania. Court of
Argued April 1981.
Decided Proctor, Pottstown, Kalis, III, J. Howard E. Steven appellants. Kane, Norristown, appellee.
Edward F. *2 LARSEN, FLAHERTY, ROBERTS, NIX, Before WILKINSON, JJ. KAUFFMAN and FLAHERTY, Justice. is whether there is a
The at issue in this case question Act of Pennsylvania of under the Survival recovery 30, 508, 164, 2, Pa. 3371 or 1972, June No. C.S.A. P.L. § § 19, 15, 1851, P.L. Wrongful April Death Act § who died as a result 1601on of a stillborn child P.S. behalf § mere. injuries received en ventre sa in alleged complaint facts of the case as pertinent Scott, Donna May appellant, are as follows. On R. Montgomery County when operating was an automobile collision which occurred when injured she was a head-on highway crossed the center of the and appellee’s automobile accident, automobile. At the time of the struck Mrs. Scott’s As a result of the eight pregnant. Mrs. Scott was months collision, child died in útero on or about May Mrs. Scott’s an induced May 1976 and was stillborn on 1976 after seeks recov- appellants’ complaint labor. Count one of the Act, supra, anguish under the Death for the ery of their for parents by pecuni- occasioned the loss loss, expenses. for and funeral Count two ary medical Act, for loss of supra, demands under the Survival of the deceased. The earnings pain suffering and for and for and complaint physical third count of the seeks the fourth count of to Donna R. In Scott. mental damages anguish M. seeks complaint Perry Scott loss, including funeral hospital expenses, personal wife, for his Donna R. possible expenses future medical Scott, of his wife. society and for the loss assistance The trial court death and survival dismissed appeal actions and the affirmed. This fol- Superior Court Superior lowed the Final Order of the Court. Acts,
The Survival and Death effective case,1 at the time of the accident this as follows: provide 3371. Actions which survive § All proceedings, causes action or real or personal, libel, except actions for slander or shall survive the death defendant, or of plaintiff or the death of one or joint more plaintiffs or defendants. party 1601. Action after death of
injured
Whenever death shall be occasioned by unlawful violence or negligence, and no for damages suit be brought by the party injured life, his or her during the widow of such deceased, widow, or if there be no personal representa- tives maintain an action for and recover damages for the death thus occasioned.
Appellants concede that this case is governed by Carroll v.
*3
Skloff,
47,
(1964)
415 Pa.
It would be difficult if impossible not to improve upon the clarity and brevity cases, the Carroll and Marko and we write here only emphasize a few of the significant points made in Marko, those In opinions. case, as in the present the real objective of the lawsuit was to compensate the parents of the deceased for emotional distress. As we stated in Marko:
Neither the wrongful death act nor the survival statute contemplates, include, or ever intended to such a claim [i. e. death and survival actions filed on behalf of a stillborn Also, the mother seek redress and the com- may infant]. 1. The Death and Survival Acts have been recodified at Pa. C.S. §§ 8301 and 8302. suffered, in her own anguish due for mental pensation independent action. 126, A.2d at 503.
420 Pa. at
Marko,
out that a
Bell,
pointed
concurring
Justice
Chief
if
sues in
anguish only
she
mother
recover for mental
anguish
if the mental
was
only
her
capacity
individual
In other
injury.2
from
accompanied by
physical
or resulted
Marko,
words,
remedy.
not without
was
plaintiff
Marko was decided in
1966,
Motor Vehi-
the No-Fault
Since
19, 1974,
Act
P.L.
No.
cle Insurance
restricted,
not foreclosed tort liabili-
1009.301 has
but
P.S.
Nevertheless,
sub-
vehicle accidents.
ty arising from motor
Act,
which an
anguish
ject
requirements
to the
feel when her child is
necessarily
must
expectant mother
inflicted on
physical
injury
result of a
stillborn as the
in an
compensable
the defendant
person by
mother’s
mother.
on behalf of the
brought by
action
will lie
whereas an action
Carroll
In
we
out that
pointed
infant born alive resulting from
damages
on
behalf
existence,
infant’s fetal
during
inflicted
injury tortiously
nor a death action will lie
neither a survival action
415 Pa.
Additionally, death is derivative and was never basically action also the estate of an unborn provide recovery by intended to Id. for the denial of a Among given fetus. reasons fetus is death action on behalf the estate of a stillborn following:
If the
is bom deformed or
as a result
handicapped
infant
injuries,
justice requires
compensation
of such
that
be
is
given.
responsibility
parents
immeasurably
broadened,
and
may necessarily
extended
or the child
upon
become a
charge
community.
similar
in their treatise on
where
state that
they
the claim of a
“is far more tenuous and
stillborn fetus
doubtful than that of the child who lives to
the seal of
bear
negligence
suffering
defendant’s
with all the conscious
and
Torts
James,
economic loss
entail.” 2
Harper
it
(1956).
18.3
is
This view has been criticized because
unfairness that
who is
representatives
said to result because
an infant
if
injured
while in existence as a fetus
recover
it
instanti,
eo
birth,
representatives
whereas the
could
survives
were stillborn.
Admittedly,
not recover if the infant
of live birth is in some sense an
requirement
arbitrary
somewhere,
must
drawn
requirement, but the line
drawn,
subject
argument
wherever it is
it will be the
criticism.
will
Perhaps everyone
agree that survival and
at least that
require
plaintiff
death actions
ends, for
will
agreement
have been alive. But there
some
argue
begins
conception;
that
life
at
others that survival
be brought
and death actions should be able to
when the
viable,
e.,
existence. We
capable
independent
fetus
i.
believe, however,
line at
or
drawing
conception
or
than birth will not remove the
viability
point
at
other
arbitrariness,
diffi-
merely
element of
but will
relocate the
of causation and dam-
culty
increasing
problems
while
Friedberg,
Endresz v.
See
ages.
N.Y.2d
301 N.Y.S.2d
Further,
(1969).
a live birth
requiring
has advantage of establishing legal to a certainty that there was living person existence, a in thereby bringing any survival or wrongful death action into conformity with other similar actions or by persons representatives who died as persons a result of or negligent injuries inflicted by another.
The if wrong, any, one, in a case present such as the is to parents child, subject stillborn to the restric tions of the Act, No-Fault Motor Vehicle Insurance recovery injury protected adequately by lawsuits which bemay brought on behalf of the mother for physical and mental suffering, and on behalf of parents 3 medical and funeral as expenses, well as on behalf of the husband for loss of his wife’s society and assistance.
Order affirmed.
O’BRIEN, J.,C. did not in participate the consideration or decision of this case. J.,
LARSEN, dissenting filed a opinion which KAUFF- MAN, J., joins.
LARSEN, Justice, dissenting. trend,
I dissent. The definite
and the overwhelming
weight of
authority (by margin
1),
more than 2 to 1
13, 1927,
Although
May
480, 1,
the Act of
P.L.
No.
12 P.S.
§
Act,
provides
recovery
Death
for the
of funeral
expenses,
expenses may
these
also be recovered under the No-Fault
19, 1974,
Motor Vehicle Insurance Act of
P.L.
No.
Art.
Ill, 301,
1009.301,
provides
P.S.
which
for the
of “loss
compensated
which is not
with section 202
because of
limitation
accordance
(a), (b), (c)
(d)
202(a)
or
of this act.” Section
provides
expense”
that “allowable
as defined in section 103 or a
required
provided
contract for services
contract. Section 103 defines “allowable
shall
in an insurance
expense”
to include:
expenses directly
...
to the
related
funeral ... of a deceased
victim,
($1,500)
not to exceed one
five
thousand
hundred dollars
count,
jurisdictions
expressly
1. At last
have
ruled
favor of
permitting recovery for the death of a stillborn
at least where
viable,
impression
the fetus was
either in cases of first
or in decisions
Shores,
reversing prior law. Eich
Town of
Gulf
Wash.2d
431,
reasoned
fetus, I would
regarding
join
medical
an unborn
knowledge
which
such causes of
recognize
of the states
majority
reverse
decision of the
Court.
Superior
action and would
This
since 1960 that a child who is
recognized
Court has
(even
it
though
born alive
recover for
prenatal
it was injured).
was a nonviable
at the time
Sinkler
embryo
Kneale,
267,164
(1960).
A.2d 93
In 1964 the Court
with
task of
for the Third Circuit was faced
Appeals
this
would hold that a cause of
determining whether
Court
action
death and survival stat-
wrongful
accrues under the
utes for the
death of a stillborn fetus. Since the
depends upon
to maintain such an action generally
infant,
survived,
whether a stillborn
had it
could have
*7
15
damages
prenatal
injuries,
suit to recover
for its
Kneale,
(1967),
A.L.R.3d
994
and since
supra,
Sinkler
affords a
infant a cause of action for
surviving
prenatal
injuries, the Court of
concluded that
Appeals
Pennsylvania
align
majority
Gullborg
would
itself with the
view.
v. Riz-
zo,
(3d
1964).
The Circuit’s brief, at Skloff, (1964). Appellants’ 12-13, agree major what I to be the correctly identifies require overruling. errors in Carroll which its for stillbirths justified deny recovery Carroll its decision to stating from in that resulting prenatal part by loss were problems pecuniary in of causation proof involved, but heightened problems where a stillborn is a death proof right bring should in no affect the to way action.
(Such the fallacious arguments) identity reincarnate right and a of action which evidentiary problems between prenatal injury. was made in the cases on early DelTufo, (1973-74); (1965); Recovery Temp.L.Q. for Prenatal Death, Rutgers (1960). Torts: Actions for L.Rev. 61 case, is, event, any Viability not an issue in the instant inasmuch eight alleged Complaint that the fetus was as it has been the Therefore, category fall into the months old. the instant case would stillborn, involving of cases viable infants. problem valuing terms solely the loss is pecuniary one A action be recognized; of evidence. cause of should a representatives opportunity stillborn’s should have to present damages overly their case. If the claimed are DelTufo, speculative, the suit be dismissed. may Recovery Torts; Death, for Prenatal Actions for 15 Rut- (1960). gers L.Rev.
Thus, appellee’s lament over is problems causation to bar insufficient the instant causes action at the outset. The Carroll also its decision Court based on conclusion legislature never provide intended to for recovery by the estate of stillborn the Wrongful a because Death Act directs that the distribution of sum recovered be in accordance with the schedule of distribution provided for the estate of an intestate. Since the intestate laws do not allow a child who born dead to take from an property intestate, reasoned, Court neither stillborn child have an estate which according distributed intestacy rules. The Court then concluded that since legislature provide did not for stillborn children in the laws, intestate it must have meant to exclude them under the Wrongful Death Act also.
However, just DelTufo, as sees identity” a “fallacious made being evidentiary problems between and the action, a identity similar has been made in Carroll between *8 the to the to bring provided the action and mechanism distribute the is proceeds of the action. As it noted in the of of excellent discussion this facet the Carroll decision in 38 (1965): Temp.L.Q. provisions death)
The Court took of a (wrongful statute which, in effect, awarded, recovery, said that a once shall distributed as of intestacy, case used these distribution provisions to decide whether or not the award shall be made at all. terms and scheme By very of statute, provisions distribution never come into until after issue of play liability the substantive has been decided, (emphasis original). of live birth requirement that states majority but the line must arbitrary requirement,
“in some sense an ” I 6). disagree. at (Slip opinion . .. . be drawn somewhere is to line drawing arbitrary anywhere to The alternative course, while, of generally of action the cause recognize causa- proving burden of the not-insubstantial maintaining has advanced to Modern medical science tion in each case. causation heretofore existent many such a state open remain gaps might That such can now be closed. gaps in those eases should preclude in some cases causation, but should proof meet the burden of failure to expert for which medi- causes of action not invalidate those Thus, draw- rather than gap. bridge cal can testimony arbitrary or some viability of a a line at the birth ing allow the action simply I would gestation, period by of evidence production the orderly to trial and let proceed its own line. the adversaries draw I would overrule Carroll reasons, foregoing For Co., Trans. Skloff, Philadelphia Marko v. would, reverse the (1966) accordingly, to the Court and remand Superior order of the Court this opinion. with consistent proceedings Common Pleas for J., dissenting opinion. this KAUFFMAN, joins A.2d 964 Respondent, Pennsylvania, COMMONWEALTH WILLIAMS, George Petitioner. Pennsylvania. Supreme Court Argued April 8, 1981. Decided