Wednesday, December 20, 2017

Court Addresses Motion to Abate Regarding Failure to Substitute Personal Representative for Deceased Plaintiff in a Civil Litigation Matter

In the case of Nye v. Scheland, No. 08-CV-3839 (C.P. Lacka. Co. Nov. 11, 2017, Nealon, J.), the court addressed a motion to abate an action based upon allegations of a Plaintiff's failure to timely substitute a personal representative for the deceased Plaintiff. 

This matter generally involved a podiatry malpractice action.

The Defendant filed the motion pursuant to 20 Pa.C.S.A. Section 3375 and Pa.R.C.P. 2352 and 2355, and asserted that the court must abate the action unless the delay in the appointment and/or substitution of a personal representative for the deceased Plaintiff was adequately explained.

Judge Nealon reviewed the law surrounding motions for abatement and the appointment of personal representatives following the death of a party.  Generally speaking, the above-noted law and Rules allow for a one year period to complete the task of appointing a personal representative for a deceased party in a civil litigation matter.  However, that one year period does not begin to run until the opposing party files a Suggestion of Death with the court.

As the Defendant in this matter did not file a Suggestion of Death, the court found that the one year time period to appoint a personal representative did not begin to run.  Moreover, the record before the court confirmed that a personal representative was appointed to the estate in any event.

Judge Nealon emphasized that the applicable law only required that a personal representative be appointed as a representative of the estate of the deceased within one year;  that is, there was no one year requirement to substitute the personal representative as a party in the litigation.

In the end, the court denied the Defendant's motion to abate and granted the Plaintiff's motion to substitute the personal representative as a party in place of the deceased Plaintiff.

Anyone wishing to review this decision, may click this LINK.

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