Wrongful Death and Survival Actions (contd.)

Wrongful Death Lawsuits | Pennsylvania Law

B. Who Can be Sued?

Once a person has died he cannot be sued. Where a cause of action lies against a deceased defendant, the suit should be against the personal representative of the decedent's estate, and not against his estate, even if there has been no personal representative appointed.

In a situation where the plaintiff has brought suit against a deceased person, the plaintiff's only recourse is to file a new action, naming the personal representative as defendant. If the death of the decedent is fraudulently concealed and the statute of limitations has run, the plaintiff can assert the fraud or concealment as a basis for extending the statutory period. It is provided by statute that the death of a person does not stop the running of the statute of limitations applicable to any claim against him, but a claim against the decedent that otherwise would be barred within one year after the death of the decedent is not barred until one year after the death, affording a plaintiff at least one year from the death within which to secure the appointment of a personal representative and to commence suit against the personal representative.

C. Who Can Recover in a Wrongful Death Action?

The Wrongful Death Act provides that the right of action shall exist only for the spouse, children or parents of the deceased, whether or not citizens or residents of this Commonwealth or elsewhere. In order to recover under the Wrongful Death Act the beneficiary must not only have the requisite family relationship to the deceased, but must show that by reason of the wrongful death he suffered the loss of a reasonable expectation of pecuniary advantage.

The Rules of Civil Procedure provide that in an action for wrongful death, the plaintiff must allege in his complaint:

1. Plaintiff's relationship to the decedent.
2. His right to bring the action.
3. The names and last known addresses of all persons entitled by law to recover damages, and
4. Their relationship to the decedent and that the action was brought in their behalf.

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