According to the Opinion, the Plaintiff commenced this
wrongful death and survival action against her sister alleging negligent
conduct which allegedly caused their mother’s death on July 28, 2013.
The initial Writ of Summons and the three (3) ensuing
reissued Writs of Summons identified the mother’s estate as the named
Plaintiff. Without securing the
Defendant’s consent or seeking leave of court, the Plaintiff changed the
identity of the named Plaintiff sua sponte on the fourth reissued Writ by
substituting himself individually for his mother’s estate.
The Defendant-sister filed Preliminary Objections asserting
that a party cannot substitute a different party as the Plaintiff under Pa.
R.C.P. 1033 without first obtaining the consent of all parties or leave of
court. The Plaintiff’s sister sought to
strike the amended Writ of Summons that was served upon her as well as the
Complaint that was subsequently filed.
In reply, the Plaintiff contended that the acceptance and
filing of the amended Writ of Summons by the Lackawanna County Clerk of
Judicial Records constituted approval by the court under Rule 1033. The Plaintiff also asserted that the
Complaint could substitute a new Plaintiff without the Defendant’s consent or
leave of court since the two (2) year statute of limitation period had not yet
expired due to the operation of the “discovery rule” which allegedly extended
that limitation.
Judge Terrence R. Nealon Lackawanna County |
Judge Nealon rejected the Plaintiff’s contention and
sustained the Defendant’s Preliminary Objections. In so ruling, the court noted that the Clerk
of Judicial Records serves a purely ministerial, administrative role with
respect to civil filings and lack the authority to evaluate the merits of a
litigant’s pleadings or to decline to accept and process a party’s filing. Since the Clerk of Judicial Records did not
possess or exercise any judicial powers, the court found that the Clerk did not
have any authority under any statute or rule of court to grant leave of court
to amend the pleadings under Rule 1033 in order to substitute a different named
Plaintiff.
Judge Nealon also ruled that, inasmuch as the two (2) year
statute of limitations applicable to wrongful death and survival actions under
42 Pa. C.S.A. §5524(2) may not be extended by the discovery rule, the
Plaintiff’s Complaint was filed after the two (2) year statute of limitations
had expired such that the Plaintiff was not at liberty to substitute a new
party in that pleading absent the consent of all parties or leave of
court.
Accordingly, the court ruled that the amended Writ of
Summons and the Complaint filed in this case were both nullities for
substituting a different party and, therefore, the Defendant’s Preliminary
Objections seeking to strike those pleadings was sustained.
Anyone wishing to read this Opinion by Judge Nealon may click this LINK.
UPDATE: Judge Nealon's decision was affirmed by the Pennsylvania Superior Court on February 3, 2018 in a Non-Precedential Decision that can be viewed HERE.
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