In contrast, a Survival action is for the benefit of the deceased person’s estate, and is brought by the personal representative of the decedent’s estate for purposes of recovering the damages suffered by the estate as a result of the defendant’s tortious conduct or crime. In a survival action, the decedent’s estate legally is permitted to recover money damages for the deceased’s pain and suffering, and his or her loss of gross earning power from (1) the date of injury until death, minus expenses for personal maintenance, and (2) from the time of death through the decedent’s estimated life expectancy.

Attorneys Fredrick E. Charles and Dennis G. Charles each have nearly 40 years of  trial experience, legal training, and skill in the investigation and preparation of wrongful death and survival lawsuits. Both have worked with some of the finest experts in the fields of medicine, science, engineering, accident reconstruction and other forensic disciplines, including those needed to properly prepare your wrongful death or survival case for trial, arbitration, mediation or out-of-court settlement, and obtain for you the full measure of money damages to which you are entitled. Attorneys Fredrick E. Charles and Dennis G. Charles understand your legal needs and concerns, will sit down with you and personally guide you through the civil litigation process,  and will work diligently to achieve the optimum outcome and compensation that you deserve.

A “wrongful death” cause of action may be brought to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery. 42 Pa.C.S.A. §8301(a)

The cause of action created by the Wrongful Death Act shall exist only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. The damages recovered shall be distributed to the beneficiaries in the proportion they would take the personal estate of the decedent in the case of intestacy and without liability to creditors of the deceased person under the statutes of this Commonwealth. 42 Pa.C.S.A. §8301(b)

In a Wrongful Death cause of action,  the plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, and funeral expenses and expenses of administration necessitated by reason of injuries causing death. 42 Pa.C.S.A. §8301(c)

Rule 2202 of the Pennsylvania Rules of Civil Procedure provides that a wrongful death action 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.  If no action 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.  If no person is eligible to recover damages — i.e.,  there is no spouse, children or parents of the deceased —  the 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. Once an action is filed, no other wrongful death actions may be filed.

In order to prove a claim under the Pennsylvania Wrongful Death Act, the plaintiff must establish by a preponderance of the evidence the following: (1) the death of a person; (2) caused by the wrongful act or neglect or unlawful violence or negligence of another; (3) the action exists only for the benefit of the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere; and (4) these relatives must have suffered a pecuniary loss as a result of the death.   The plaintiff shall be entitled to recover, in addition to other damages, damages for reasonable hospital, nursing, medical, funeral expenses and expenses of administration necessitated by reason of injuries causing death.  42 Pa.C.S. §8301

A  “wrongful death” claim is NOT the decedent’s cause of action. A wrongful death action exists for the benefit of the spouse, children or parents of the decedent, whether or not they are citizens or residents of Pennsylvania. A wrongful death claim does not compensate the decedent but, rather, specified family members of the decedent — his spouse, children or parents — for the damages they have suffered as a result of the decedent’s death. These relatives need not reside at the same home or under the same roof as the deceased, and may reside elsewhere and still be within the family relationship.

“Wrongful death” damages compensate the spouse, children, or parents of the deceased for the pecuniary loss they have sustained by the denial of future contributions the decedent would have made in his or her lifetime for their benefit. A pecuniary loss must be based on reasonably continuous past acts or conduct of the deceased and does NOT include claims for physical pain, mental suffering, grief or distress of the mind. A spouse may recover economic loss for the present value of the services, society, and comfort a deceased spouse would have provided  but is not permitted to file a separate claim for loss of consortium.  A child may recover the pecuniary value of the loss of the guidance, tutelage, and moral upbringing the deceased parent would have provided. A parent may recover the pecuniary value of the loss of a child’s “services,” including society and comfort.

In calculating the decedent’s lost future earning capacity, the Pennsylvania courts have considered sources other than, and in addition to, actual wages, but do not consider income tax consequences. A decedent’s lost future earning capacity is addressed in the same manner as any other question of fact. Mortality tables may be used as one of the factors in computing a decedent’s normal life expectancy, along with the decedent’s health prior to the event causing the wrongful death, habits, occupation, surroundings and any other elements which would be likely to operate for or against that person’s longevity.

Various affirmative defenses under Rule 1030(a) of the Pennsylvania Rules of Civil Procedure, and miscellaneous statutory defenses may exist to a wrongful death civil court action, depending upon the context in which the decedent’s death occurred.  Examples of the latter include, without limitation: the Political Subdivision Tort Claims Act, 42 Pa.C.S.  §§8541-8564, 8501; Sovereign Immunity, 1 Pa.C.S.§§2310; the Equine Activities Liability Act, 4 Pa.C.S.A. §§ 601-606; the exclusivity provision of the Workers’ Compensation Act, 77 Pa.C.S. §§1-1603, §481(a); Good Samaritan Civil Immunity for Use of Automated External Defibrillator (AED), 42 Pa.C.S.A.§8331.2(c);   the Amusement Rider Safety and Liability Act, 4 Pa.C.S.A. §§ 501-507; Non-medical Good Samaritan Civil Immunity, 42 Pa.C.S.A.§8332(a); The Pennsylvania Skier’s Responsibility Act, 42 Pa.C.S.A. §7102(c) ;  the Occupational Disease Act, 77 Pa.C.S. §§1201-1603, §1403;  the Recreational Use of Land and Water Act, 68 Pa.C.S. §477-1 et seq.; mandatory arbitration; self-defense in homicide cases, 18 Pa.C.S. §505, 42 Pa.C.S. §8340.2., and   exculpatory contracts.   In general, the following do NOT constitute defenses in a wrongful death lawsuit: failure to “mitigate damages” and defendant’s legal insanity or mental infirmity.

Punitive damages are not recoverable in wrongful death actions.  Harvey v. Hassinger, 461 A.2d 814, 315 Pa.Super. 97, (Pa. Super. 1983). Monetary damages awarded in a wrongful death lawsuit pass outside the decedent’s estate and are not subject to Pennsylvania’s inheritance tax provisions. Further, the decedent’s creditors cannot make a claim against the wrongful death award payable to the decedent’s family.The damages awarded in a wrongful death action are distributed to the decedent’s family according to the law of intestate distribution. 42 Pa.C.S. § 8301(b).

A 2-year statute of limitations applies to wrongful death actions. 42 Pa.C.S.A. §5524(2).

The Survival Act has its origin in the common law and is predicated upon the decedent’s injury, not his or her death. The survival action is brought by the decedent’s personal representative on behalf of the decedent’s estate  — a decedent’s estate cannot be a party to a survival lawsuit unless a personal representative exists.

A survival action is NOT a new cause of action but, rather, a continuation in the deceased’s personal representative of the causes of action that the decedent would have been entitled to litigate had he or she lived. Mohney v. Pennsylvania, 809 F.Supp.2d 384 (W.D.Pa.2011)

The proceeds from a survival action pass through the decedent’s estate,  are the property of the decedent’s estate, are available to creditors for the payment of the decedent’s debts, and are distributed to the heirs, legatees or distributees as general assets of the estate.

Court approval is required to settle a survival action in order to protect the decedent’s estate, its creditors, and its beneficiaries. 20 Pa.C.S. §3323.

The pecuniary loss to the decedent is the focus of damages in a survival action. The monetary damages that are recoverable in a survival action include medical bills,   the decedent’s probable lifetime earnings, less his or her probable lifetime costs of maintenance, and  the decedent’s conscious pain and suffering. If the decedent is unconscious for the entire period between the time of injury and the time of death, there can be no recovery for pain and suffering. Damages for the loss of life’s amenities is recoverable only if the victim survives the accident that is the basis of the survival action.

Punitive damages may be recovered in a survival action. The Pennsylvania courts recognize the Restatement (Second) of Torts, §908, which defines “punitive damages”  as damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.  Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.

In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.  A jury may award punitive damages when the evidence establishes that the defendant knew, or had reason to know, of facts which created a high risk of physical harm to another, and the defendant deliberately proceeded to act in conscious disregard of, or indifference to, that risk. Martin v. Johns-Manville Corp., 494 A.2d 1088, 1097 (Pa. 1987).

Wrongful death claims are favored over survival claims in the Pennsylvania courts. Consequently, an award of damages in the survival claim based on the estate’s loss of decedent’s earnings during his normal life expectancy must be reduced by the amount of probable financial contributions awarded to the wrongful death beneficiaries. Hence, this reduction awards priority to the wrongful death beneficiaries.

A 2-year statute of limitations applies to a survival action, 42 Pa.C.S.A. §5524, and begins to run on the date of the decedent’s injury.