Published: October 3, 2013
By: E. Richard Ogrodowski
As previously mentioned, Pennsylvania permits the recovery of damages due to an accidental death caused by someone else’s negligence or other conduct under two statutes: the Wrongful Death Act, 42 Pa.C.S. § 8301, and the Survival Act, 42 Pa. C.S. § 8302. This post focuses on a claim for damages under the Survival Act in Pennsylvania due to an accidental or wrongful death.
What is a survival action in Pennsylvania? Pursuant to 42 Pa. C.S. § 8302, “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.” As such, any claim a decedent may have arising from the accident leading to their death “survives” and may be pursued on their behalf. This is unlike a wrongful death action, which is a claim that belongs to the wrongful death beneficiaries.
Who can bring a survival action in Pennsylvania? The personal representative, administrator, administratrix, executor, or executrix of the decedent’s estate may bring the survival action arising fron an accidental or wrongful death.
What are the recoverable damages in a survival action in Pennsylvania? Damages include, but are not limited to: loss of earnings from the date of the injury to the date of death; loss of future earnings, which are reduced by the cost of personal maintenance (living expenses to maintain life) of the decedent; loss of retirement income; pain and suffering of the decedent; loss of life’s pleasures; and medical, hospital, and nursing expenses. Pennsylvania Suggested Standard Civil Jury Instructions (3rd Ed.) § 6.19 (Civ). Some of the damages in a survival action are the same as those available in a wrongful death action. Nevertheless, if both a survival action and wrongful death action are filed, the damages may not be duplicative. The distribution of any damages recovered in a survival action go through the estate and are distributed pursuant to the decedent’s will, or if no will exists, then the damages are distributed pursuant to Pennsylvania’s intestacy statutes, 20 Pa. C.S. § 2101 et al. Because the damages in a survival action pass through the decedent’s estate, unlike in a wrongful death action, such damages are subject to Pennsylvania’s inheritance tax.
What is the statute of limitations for a survival action in Pennsylvania? A survival action must be filed within two years of the date of injury. 42 Pa.C.S. § 5524(2). Accordingly, while a wrongful death action accrues on the date of death, it is important to realize that a survival action may accrue prior to the date of death and thus on a different date than the wrongful death action.