This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.
Published: September 10, 2013
By: E. Richard Ogrodowski
This is the first in a series of posts that will provide general background on claims that may be made due to an accidental death in Pennsylvania and West Virginia. Today, I am going to focus on a claim for damages under the Wrongful Death Act in Pennsylvania. As you will read, the basis for the claim in Pennsylvania is a statute. The goal of the post is to provide some basic information and thus does not cover all of the intricacies of a wrongful death action in Pennsylvania.
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.
What is a wrongful death action in Pennsylvania? It is a claim that seeks “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another ….” 42 Pa. C.S. § 8301(a). But, the right of action only exists for the benefit of certain family members of the decedent. The statute states: “the right of the action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not residents” of the Commonwealth of Pennsylvania. 42 Pa.C.S. § 8301(b). As you can see, the potential beneficiaries are limited. Should none of the foregoing beneficiaries exist, however, then a “personal representative of the deceased may bring an action to recover damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.” 42 Pa. C.S.A. § 8301(d).
Who can bring a wrongful death action in Pennsylvania? Within six months of the death of the decedent, the personal representative of the deceased may bring a wrongful death action. Pa.R.Civ.P. 2202(a),(b). The personal representative is defined as “the executor or administrator of the estate of a decedent duly qualified by law to bring actions within this Commonwealth.” Pa.R.Civ.P. 2201. Nevertheless, should the personal representative of the deceased fail to bring a wrongful death action within six months of the death of the decedent, although the personal representative can still file the action after the six month deadline, any potential beneficiary entitled to recover damages in a wrongful death action may bring the “action as trustee ad litem on behalf of all persons entitled to share in the damages.” Pa.R.CivP. 2202(b). Once an action is filed, it bars any other action for wrongful death. Pa.R.Civ.P. 2202(c).
What are the recoverable damages in a wrongful death action in Pennsylvania? Damages include, but are not limited to: reasonable hospital expenses, nursing expenses, medical expenses, funeral and burial expenses, expenses of administration necessitated by reason of injuries causing death, loss of contributions from the decedent, loss of services, society, and comfort, and loss of services to the decedent’s children, such as guidance, tutelage, and moral upbringing. 42 Pa. C.S.A. § 8301(c); Pennsylvania Suggested Standard Civil Jury Instructions (3rd Ed.) § 6.19 (Civ).
What is the statute of limitations for a wrongful death action in Pennsylvania? An action for wrongful death must be filed within two years of the death of the decedent. 42 Pa.C.S. § 5524(2).