Court Reaffirms Rule That Case Cannot Proceed Against a Deceased Defendant

In the case of Carter v. Marchisotto, No. GD 21-844 (C.P. Alleg. Co. May 13, 2024 Hertzberg, J.), the court, in a Rule 1925 Opinion, justified its decision in granting summary judgment in a trip and fall case.

After initially noting that the court’s entry of summary judgment against one of the Defendants did not result in a final Order disposing of all claims and that, therefore, the Plaintiff’s appeal should be quashed, the court still addressed certain other issues raised in the event the Superior Court went on to consider the merits of the appeal.

Of note, the court noted that the Plaintiffs had listed an administratrix of the estate of a deceased Defendant as a party Defendant. However, the defense in the case had shown that no such administratrix had been formally appointed by the court.

Accordingly, the court noted that it had properly dismissed that Defendant, in part, under Pennsylvania law that holds that no dead person can be a party to a lawsuit because a court does not have any jurisdiction until a personal representative is formally substituted in the place of the dead party.

The court noted that it was improper for the Plaintiff to file a case directly against the heirs of the deceased Defendant and avoid the proper procedures for the appointment of a personal representative of the estate and, thereafter, substituting the estate of the deceased Defendant as the party Defendant.

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


Source: The Legal Intelligencer Common Pleas Case Alert - www.Law.com (July 4, 2024).

Proper Venue Against One Defendant Can Be Proper Venue Against All Defendants

In the case of Hagedorn v. Rick’s Backhoe Service, Inc., No. 18-CV-3723 (C.P. Lacka. Co. April 5, 2022 Nealon, J.), the court addressed an improper venue challenge in a case where a Plaintiff’s attorney was appointed the Administrator of a deceased tortfeasor’s estate.

According to the Opinion, an injured Schuylkill County motorcyclist filed a lawsuit against the Lackawanna County personal representative of a deceased truck driver's estate and a Schuylkill County trucking company regarding a motor vehicle accident that occurred in Berks County. 

The accident allegedly arose out of an alleged road rage incident. The Plaintiff alleged that the truck driver pursued the motorcyclist following an angry exchange of strong language and gestures in a construction zone. The truck driver allegedly struck the rear of the Plaintiff’s motorcycle and ejected the motorcyclist from his motorcycle, resulting in fatal injuries.

The Defendant Administrator of the truck driver's estate and trucking company filed Preliminary Objections challenging venue under Pa. R.C.P. 1006(b) and Pa. R.C.P. 2179(a) on the basis that the trucking company did not regularly conduct business in Lackawanna County as required under the quality/quantity test for corporate venue.

The trucking company also filed a demurrer to the Plaintiff’s allegations of willful, wanton, and reckless conduct on the part of the truck driver, as well as the claims for punitive damages, on the basis that those claims lack a sufficient factual basis.

On the venue issue, the court noted that, since a civil action against a deceased tortfeasor must be filed against the personal representative of the decedent’s estate, and given that the Administrator appointed to the truck driver’s estate was properly served at the Administrator’s law office in Lackawanna County, venue is found to be proper as to that personal representative. 

Judge Nealon additionally noted that, since Pa. R.C.P. 1006(c)(1) provides that an action seeking to enforce joint or joint and several liability against multiple defendants may be brought against all Defendants in any county in which venue may be established against any one of the defendants, and given that the motorcyclist had asserted joint and/or joint and several liability against both the Administrator of the tortfeasor's estate and the trucking company, venue is also found to be proper in Lackawanna County with respect to the trucking company regardless of whether or not the trucking company regularly conducted business in Lackawanna County.

As to the allegations of recklessness and the claims for punitive damages, Judge Nealon followed his numerous previous decisions in allowing such claims to be asserted in any case whatsoever regardless of the facts alleged. The court additionally noted that, even if Rule 1019 did happen to obligate the Plaintiff to allege specific facts sufficient to sustain a punitive damages claim at trial (which this Court did not read Rule 1019 as requiring), the allegations regarding the truck driver’s alleged actions, for which the trucking company would allegedly be vicariously liable, were found to satisfy that standard in any event in this case involving alleged road rage conduct.

As such, all of the Preliminary Objections asserted were overruled.

It is noted that, on pages 13 and 15 of the Opinion, Judge Nealon made references to the dispute in Pennsylvania as to the proper assertion of claims of recklessness in Pennsylvania and, in doing so, noted the Pennsylvania Bar Quarterly article entitled “Pleadings for Clarity: Appellate Guidance Needed to Settle the Issue of the Proper Pleading of Recklessness in Personal Injury Matters” written by Daniel E. Cummins.

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

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Litigation Cannot Proceed Against Deceased Party; Personal Representative of Estate Must be Substituted

In the case of Brown v. Quest Diagnostic Clinical Labatories, Inc., No. 1907 MDA 2017 (Pa. Super. May 1, 2019 Ford Elliot, P.J.E., Gantman, P.J.E., Nichols, J.) (Op. by Ford Elliot, P.J.E.), the Superior Court reaffirmed the general rule that a trial court lacks subject matter jurisdiction over a claim filed against a deceased party.  

This matter arose out of a medical malpractice action.

The appellate court noted that the filing of a Notice of Death as well as the substitution of a personal representative is mandatory in order to maintain the viability of an action.   The court noted that the Rules of Civil Procedure require that, where a party passes away during a litigation, an estate must be raised for the deceased party, letters of administration must be issued, and a personal representative must be appointed to the estate within one (1) year of the Suggestion of Death being filed.   The court noted that this applicable statute does not set a deadline for the filing of a Motion to Substitute.

In this matter, the appellate court found that it was error for the trial court to abate an action for the delay in filing a Motion to Substitute where the personal representative had been appointed within the one (1) year statutory period.

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

I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

A Suit Against a Dead Person Can Be Killed by the Statute of Limitations

In the case of Murphey v. Krajewski, No. 18-CV-1541 (C.P. Lacka. Co. Jan. 25, 2019 Nealon, J.), the court granted preliminary objections and dismissed a Complaint that had been filed against a deceased defendant.

According to the Opinion, this personal injury matter arose out of a motor vehicle accident.  Unbeknownst to the Plaintiff or his counsel, the defendant tortfeasor passed away a few months after the accident.  Thereafter, the Plaintiff filed suit against the deceased tortfeasor defendant, still not realizing that he had passed away.  The Complaint was filed four days prior to the expiration of the statute of limitations.

Judge Terrence R. Nealon
Lackawanna County

Judge Nealon confirmed the well-settled rule of law that a lawsuit filed against a deceased person is a legal nullity and the filing of such a lawsuit does not serve to toll the statute of limitations.  The court noted that the Plaintiff never opened an estate for the decedent or had a personal representative appointed on behalf of the decedent's estate prior to filing suit.

The court also noted that, once a statute of limitations expires, a personal representative of the estate cannot be substituted as a party defendant because the claim is time barred.  As such, the preliminary objections of the defendant were sustained and the Complaint was dismissed.

Anyone wishing to review this decision by Judge Nealon may click this LINK.

In the case of Vasquez v. Estate of Mosier, No. 766-CV-2018 (C.P. Monroe Co. Nov. 30, 2018 Williamson, J.), the court addressed the identical issue pertaining to how to handle pleadings when a party Defendant died before the litigation was commenced. 

More specifically, this matter arose out of a motor vehicle accident and involved claims of personal injury by the Plaintiff against a Defendant driver.  That Defendant driver later passed away after the accident but before suit was commenced.  A personal representative was appointed as the estate of the deceased Defendant.

Thereafter, the Plaintiff filed a Writ of Summons four (4) days before the statute of limitations expired on the claims presented against the deceased Defendant driver.  

The court’s Management Order issued after suit was filed directed the Plaintiff to sue the personal representative of the decedent’s estate.  

In response, the Plaintiff filed a Petition for Substitution of Successor.   The Defendants filed objections to the Plaintiff’s Petition asserting that the Writ of Summons should be stricken for failure to designate a proper and legal entity as the Defendant.  

Plaintiffs countered with an argument that the substitution of the estate of the decedent in the place of the decedent was proper because the Defendant would not suffer any prejudice as the Plaintiff had properly preserved the action by timely filing a Writ of Summons.   The Plaintiff also asserted that the personal representative could not claim prejudice because he was aware of the litigation prior to the expiration of the statute of limitations.  

In the alternative, the Plaintiff argued that, because the Writ was timely issued before the statute of limitations, the Plaintiff had until February, 2020 to reissue or serve it on any Defendants under 20 Pa. C.S.A. §3383.

Judge David J. Williamson
Monroe County

Judge Williamson disagreed with the Plaintiff’s analysis and noted that an attempt at a substitution of a successor was improper in this case because the suit was brought against a deceased person which was a nullity under the law.   Such a nullity could not be amended or cured by simply substituting parties.  

The court also found that the Plaintiff clearly knew of the decedent’s death because the Plaintiff had named the estate as a Co-Defendant.   The court found that the Plaintiff could have easily obtained information about the personal representative from the County Register of Wills office.  Judge Williamson noted that the Plaintiff’s failure to originally include the personal representative as a party Defendant meant that the Plaintiff had sued non-existent entities.  

Accordingly, Judge Williamson ruled that he was unable to grant the Petition to Substitute a Successor because the court was required to treat the Summons as if it had never existed given that it was a legal nullity.   It was additionally noted that the Plaintiff was unable to file a Praecipe for New Writ of Summons given that the statute of limitations had expired.  As such, the claim was dismissed. 

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

Source: “Digests of Recent Opinions.”  Pennsylvania Law Weekly (Jan. 22, 2019). 
 

Case Dismissed for Failing to Substitute Estate for Deceased Defendant and For Service of Process Issues

In a recent detailed Order issued in the case of Byrne v. Quinn, No. S-1140-2015 (C.P. Schuyl. Co. Oct. 10, 2018 Goodman, J), Judge James P. Goodman of the Schuylkill County Court of Common Pleas, granted a Defendant’s Preliminary Objections to the Plaintiff’s Complaint.  

The court primarily based its decision to dismiss the Complaint on the fact that both parties acknowledged that one of the Defendants had passed away previously and that the Plaintiff was aware of this fact at the time she filed the Complaint but did not seek to substitute a personal representative/estate in the place of the deceased Defendant.  As such, the court held that it lacked subject matter jurisdiction over that particular Defendant.  

The court went on to address the other Defendant’s Preliminary Objections which were filed on the basis that the Complaint was not served prior to the expiration of the statute of limitations.   The court reviewed the law of Lamp v. Hayman, 366 A.2d 882 (Pa. 1976) and its progeny to conclude that the Plaintiff failed to comply with the requirements of Pennsylvania law to undertake a good faith effort to complete service of original process.  

As such, the case was dismissed with prejudice.  

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

I thank the prevailing defense counsel, Stephen T. Kopko of my office for bringing this decision to my attention.  

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.

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.

Superior Court Addresses Procedural Impact of Death of Defendant Before Case Filed (Non-Precedential)

In the non-precedential decision of Vincigueria v. Tunstall, No. 403 WDA 2016 (Pa. Super. Sept. 23, 2016 Lazarus, Olson, Platt, JJ.) (Mem. Op. Platt, J.), the Pennsylvania Superior Court found that a trial court properly dismissed a Plaintiff’s action against a driver of the other car involved in the subject motor vehicle accident because the other driver had died before the action was filed, the statute of limitations had expired, and there was no evidence to show any fraudulent concealment in order to toll the statute of limitations.  The court additionally found that the Plaintiff’s own lack of due diligence precluded applying the relation back doctrine. 

According to the Opinion, the Plaintiff filed her action more than eight (8) months after the other driver’s death and did not name the other driver’s personal representative as a Defendant and also failed to file any action against the other driver’s estate within one (1) year of the other driver’s death.     It was additionally noted in the Opinion that the Sheriff’s Department had notified the Plaintiff of the other driver’s death when the Sheriff attempted to complete service.  

Anyone wishing to review this non-precedential memorandum opinion may click this LINK.

Superior Court Addresses Procedural Issues With Death of a Defendant During Pendency of Litigation

In its recent September 28, 2016 decision in the case of Grimm v. Grimm, No. 2016 Pa. Super. 217, 915 W.D.A. 2015 (Pa. Super. Sept. 28, 2016 Olson, Stabile, and Musmanno, J.J.) (Mem. Op. by Olson, J.), Pennsylvania Superior Court addressed the issue of whether a trial court possesses subject matter jurisdiction of a claim pending against a Defendant when the Defendant in an action dies during the litigation and no personal representative is substituted in his or her place. 

The court held that the death of a party deprived the trial court of subject matter jurisdiction over litigation by or against the deceased until such time as the deceased’s personal representative is substituted in his or her place.  

I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm for bringing this case to my attention. 

Anyone wishing to review this decision may click this LINK.