Thursday, March 30, 2017

Party May Not Substitute Another Party in a Reissued Writ of Summons Without Consent of Opposing Parties or Leave of Court

In his recent decision in the case of Estate of Marsh v. Lizza, No. 2016-CV-2812 (C.P. Lacka. Co. March 1, 2017 Nealon, J.), Judge Terrance R. Nealon of the Lackawanna County Court of Common Pleas addressed a Plaintiff’s attempt to substitute another party in a reissued Writ of Summons without the consent of the opposing parties or the court. 

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.


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