Wednesday, June 24, 2020

Must File a Notice of Death Regarding Death of a Plaintiff During Suit To Start Time Running on Abatement

In the case of Mandarano v. Plink, No. 2018-CV-2099 (C.P. Lacka. Co. June 5, 2020 Nealon, J.), the court addressed issues pertaining to an abatement of an action in a premises liability case.

According to the Opinion, the Plaintiff instituted this premises liability action in April of 2018 and, following his death in January of 2019, the Plaintiff’s son was appointed as the Executor of his father’s estate in February of 2019. 

By January of 2020, the defense had filed a Motion for Summary Judgment asserting that the court had been divested of subject matter jurisdiction given that the action abated pursuant to an application of 20 Pa. C.S.A. §3375 and Pa. R.C.P. 2355 since the personal representative of the Plaintiff’s estate had not been substituted as the named party in the lawsuit within one (1) year of the Plaintiff’s death. 

Judge Nealon noted that §3375 and Rule 2355 provide that, if a personal representative “is not appointed” within one (1) year after the filing of a notice of suggestion of the Plaintiff’s death, the court must abate the action unless the delay in securing Letters Testamentary or Letters of Administration is reasonably explained. The court emphasized that the actual timing of the substitution of the personal representative as the named party in the lawsuit is not governed by either §3375 or Rule 2355. 

The court found that, since a notice or suggestion of death was never filed in this case, the 1-year limitation regarding the appointment of a personal representative has never commenced. Also, the court noted that the decedent’s son was, in fact, appointed as the Executor of his father’s estate a mere fifteen (15) days following the death of the original Plaintiff. 

Based upon these findings, the court found no basis upon which to abate the matter as requested by the defense. Accordingly, the Defendant’s Motion for Summary Judgment was denied. 

Anyone wishing to review a copy of this decision may click this LINK.

PRACTICE TIP:  File that Notice of Death, or Suggestion of Death, to start the time running on this deadline.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.