Wednesday, May 31, 2017

Judge Nealon of Lackawanna County Addresses Issues Surrounding Substitution of Estate for Deceased Defendant in Civil Litigation Matter

In his recent decision in the case of Bandru v. Fawzen, No. 2013-CV-3959 (April 21, 2017 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas denied a Defendant’s Motion to Dismiss a Plaintiff’s Complaint for failure to substitute the Defendant’s estate as the named Defendant within one (1) year of the filing of the Notice of the Defendant’s Death.

The issues in this case arose out of a motor vehicle accident litigation.  After the Defendant in this action died, defense counsel filed a Notice of Death pursuant to Pa. R.C.P. 2355.   Defense counsel later filed a motion seeking to dismiss the case for lack  of subject matter jurisdiction on the grounds that the personal representative of the Defendant’s estate was not substituted as the named Defendant within a certain period of time.

In response, Plaintiff filed a Motion to Substitute the Executrix of the Defendant’s Estate as the Named Defendant in accordance with Pa. R.C.P. 2352(b).  

Judge Nealon ruled that, since the Executrix was appointed as a personal representative of the Defendant’s Estate before defense counsel filed a Notice of Death under Rule 2355, and since the Executrix had consented under Pa. R.C.P. 2352(a) to be substituted as the named Defendant, the court had subject matter jurisdiction over the case.

Accordingly, the Plaintiff’s Motion to Substitute the Executrix of the Defendant’s Estate as the named Defendant was granted, and the Defendant’s Motion to Dismiss for lack of jurisdiction was denied.  

Anyone wishing to review Judge Nealon's Opinion in Bandru may click this LINK.

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