ALD-040                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                      No. 13-3341
                                      ___________

                                LOUIS T. FAISON SR.,
                                                 Appellant

                                            v.

                         UNITED STATES OF AMERICA
                     ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 11-cv-00395)
                     District Judge: Honorable Matthew W. Brann
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 November 15, 2013

         Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges

                           (Opinion filed: December 3, 2013)
                                       _________

                                     OPINION
                                      _________

PER CURIAM

      Louis T. Faison, Sr. (“Faison, Sr.”), appeals pro se from the District Court’s order

granting the Government’s motion to dismiss a Pennsylvania wrongful death action

brought under the Federal Tort Claims Act (“FTCA”). Because the District Court
properly determined that Faison, Sr., lacked standing to pursue his claim, we will

summarily affirm.

       In April 2008, Faison, Sr.’s son, Louis T. Faison, Jr. (“Faison, Jr.”), died while

incarcerated at USP-Lewisburg. He was survived by his wife and three adult children.

His widow, and the executrix of his estate, Veta B. Faison (“Veta”), brought a wrongful

death action in December 2010. See Faison v. United States, M.D. Pa. Civ. No. 10-cv-

02603. A mediated settlement was reached in September 2011.

       Separately, in February 2011, Faison, Sr., filed the present action, alleging that

Faison Jr., was “subjected to damage, injury and death as a result of careless and

negligent acts of the defendant . . . in providing inadequate medical care and treatment to

the . . . decedent.”1 The Government filed a motion to dismiss, arguing that Faison, Sr.,

lacked standing and was not entitled to recover damages under the Pennsylvania

Wrongful Death Act. The District Court agreed, and granted the motion to dismiss.

Faison, Sr., appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of

a dismissal for a lack of standing is plenary. Goode v. City of Philadelphia, 539 F.3d

1
  The case was initially filed, through counsel, by Terry Faison Williams (Faison, Sr.’s
daughter and Faison, Jr.’s brother) on behalf of Faison Sr., pursuant to a power of
attorney. Williams’ counsel later sought leave to withdraw, which the District Court
granted. Thereafter, the District Court permitted Williams to litigate pro se on behalf of
Faison, Sr. The District Court entered summary judgment in the Government’s favor on
the ground that both Williams and Faison, Sr., lacked standing under Pennsylvania law to
pursue a wrongful death action. On appeal, we remanded, holding that the “District
Court should not have allowed . . . Williams to represent her father pro se after permitting
her counsel to withdraw.” Williams v. United States, 477 F. App’x 9, 11 (3d Cir. 2012)
(not precedential). On remand, the District Court terminated Williams as a plaintiff and
permitted Faison, Sr., to proceed pro se.
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311, 316 (3d Cir. 2008). We may summarily affirm if the appeal presents no substantial

question. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

       The FTCA provides that “the United States is liable for injury caused by the

negligent act of a government employee to the same extent a private employer would be

liable.” McSwain v. United States, 422 F.2d 1086, 1087-88 (3d Cir. 1970). Liability

under the FTCA is determined by applying the substantive law of the state in which the

injury occurred. See Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir.

2000). Because the alleged negligent acts in this case occurred at USP-Lewisburg,

Faison, Sr.’s claims are governed by Pennsylvania law. DeJesus v. United States Dep’t

of Veterans Affairs, 479 F.3d 271, 279 (3d Cir. 2007).

       The Pennsylvania Wrongful Death Act provides that an action may be brought for

the death of an individual caused by negligence if no action for damages was brought by

the injured person during his lifetime. 42 Pa. Con. Stat. Ann. § 8301(a). This right of

action exists for the benefit of the spouse, children, or parents of the deceased. 42 Pa.

Con. Stat. Ann. § 8301(b). Under the Act, “beneficiaries of a death action award share

according to the law of intestate distribution.” Olden v. Hagerstown Cash Register, Inc.,

619 F.2d 271, 275 (3d Cir. 1980) (citing 42 Pa. Con. Stat. Ann. § 8301(b)). Where, as

here, no action is brought within six months following the decedent’s death, an action

may be brought only 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.” Pa. R. Civ. P. 2202(b). The term “personal representative” is



                                              3
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.

       Here, Faison, Jr.’s widow and the executrix of his estate, Veta, brought a wrongful

death action in the District Court in 2010, and a mediated settlement was reached in

September 2011. See Faison v. United States, M.D. Pa. Civ. No. 10-cv-02603 (order

entered Sept. 13, 2011). Because Veta “brought the wrongful death action as the

executrix of the decedent’s estate . . . [i]t was . . . impermissible for the other [potential]

beneficiaries to maintain separate actions . . . or formally join in the action.” Machado v.

Kunkel, 804 A.2d 1238, 1247 (Pa. Super. Ct. 2002). Therefore, the District Court

properly concluded that Faison, Sr., lacked standing to bring a separate wrongful death

suit. See Ferencz v. Medlock, 905 F. Supp. 2d 656, 671-72 (W.D. Pa. 2012) (concluding

that, under Pennsylvania law, mother lacked standing to bring wrongful death action in

her individual capacity (as opposed to in her capacity as administratrix) against prison

employees for her son’s death while he was incarcerated); cf. Pa. R. Civ. P. 2202(c)

(providing that “[w]hile an action is pending it shall operate as a bar against the bringing

of any other action for such wrongful death.”).

       Faison, Sr., suggests that the District Court should have permitted him to petition

as an interested party in the settlement award received by Veta. See Pa. R. Civ. P.

2206(b) (requiring court to apportion damages from wrongful death verdict or settlement

“upon petition of any party in interest”). As noted above, wrongful death action

beneficiaries share the award according to the law of intestate distribution. 42 Pa. Con.

Stat. Ann. § 8301(b). Under Pennsylvania’s intestacy laws, parents of the decedent are

                                                4
not entitled to a share of the estate when there is a surviving spouse and children. 20 Pa.

C.S.A. § 2102 (describing surviving spouse’s intestate share when there are surviving

issue); § 2103(1) (providing that the share of the estate to which the surviving spouse is

not entitled shall pass first to the issue of the decedent). Here, Faison, Jr., was survived

by his wife and children. Therefore, even if allowed to proceed as an interested party

under Rule 2206(b), Faison, Sr., would not have been entitled to any recovery.

       For the foregoing reasons, we will summarily affirm the District Court’s

judgment. See 3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.




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