NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellee No EDA 2013

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P ANTHONY C. BENNETT, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL J. PARKER, ESQUIRE, AS ADMINISTRATOR OF THE ESTATE OF FRANK LOSSMANN, Appellee No EDA 2013 Appeal from the Order June 7, 2013 in the Court of Common Pleas of Monroe County Civil Division at No.: 1684-CV-2012 BEFORE: GANTMAN, J., OLSON, J., and PLATT, J. * MEMORANDUM BY PLATT, J. FILED MARCH 03, 2014 Appellant, Anthony C. Bennett, appeals from the order sustaining preliminary objections, striking the substitution of Appellee, Michael J. Parker, Esq., as Administrator of the Estate of Frank Lossmann, and dismissing his complaint for personal injuries from an auto vehicle accident. Appellant argues that he took all reasonable steps to substitute an administrator of the estate of the other driver, who had in fact died before the original complaint was filed. We affirm. The relevant facts of this case are not in dispute. Appellant was involved in a motor vehicle accident with Frank J. Lossmann on August 25, * Retired Senior Judge assigned to the Superior Court.

2 2010. Appellant filed a complaint on February 29, The sheriff filed a return of service on March 26, 2012, indicating no service and reporting that Mr. Lossmann had died on April 18, On March 22, 2013, Appellant filed a praecipe to substitute Michael J. Parker, Esq., as administrator of the estate of Frank Lossmann. Attorney Parker accepted service of the complaint on the same day. On April 16, 2013, Appellee filed preliminary objections to the complaint, asserting that pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(2) and (a)(4), the complaint was a legal nullity, void ab initio. The trial court sustained the preliminary objections and dismissed the complaint, on June 7, 2013, in an order with an accompanying opinion. This timely appeal followed on July 8, Appellant raises one question for our review. Whether the trial court committed an error of law and/or abused its discretion in granting Appellee s Preliminary Objections dismissing [Appellant s] complaint for failure to appropriately name and serve a Defendant? (Appellant s Brief, at 4). Our standard of review is well-settled. [P]reliminary objections which result in the dismissal of a cause of action should be sustained only in cases that 1 The thirtieth day following the order fell on a Sunday. See Pa.R.A.P. 903(a); 73 P.S Appellant filed a concise statement of errors on July 17, See Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on July 22, 2013, relying on its opinion of June 7, See Pa.R.A.P. 1925(a)

3 are [so] clear and free from doubt that the plaintiff will be unable to prove legally sufficient facts to establish any right to relief. All doubts in this determination should be resolved by overruling the preliminary objections. It is well settled that [a] dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect. Moreover, because a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person s estate is improper. Valentin v. Cartegena, 375 Pa. Super. 493, 544 A.2d 1028, 1029 (1988) (citations and quotation omitted). If a plaintiff commences an action against a person who has previously deceased, the only recourse is to file a new action naming the decedent s personal representative as the defendant. Id. Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000) (one citation omitted) (emphasis added). Here, Appellant argues that substitution of parties was permissible under Pa.R.C.P. 2352, which addresses the substitution of a successor party. 2 (See Appellant s Brief, at 9). However, Appellant s argument disregards our caselaw which has long held that if a suit is brought against a 2 Rule 2352, substitution of a successor, provides that: (a) The successor may become a party to a pending action by filing of record a statement of the material facts on which the right to substitution is based. (b) If the successor does not voluntarily become a party, the prothonotary, upon praecipe of an adverse party setting forth the material facts shall enter a rule upon the successor to show cause why the successor should not be substituted as a party. Pa.R.C.P

4 defendant who has already died, unless suit was brought against the personal representatives within the time prescribed by the statute of limitations, it is completely barred. See Montanya, supra at 950; see also Thompson v. Peck, 181 A. 597, 598 (Pa. 1935) (holding that unless suit was brought against personal representatives within statute of limitations period, it is completely barred); accord, Valentin, supra at Furthermore, under controlling authority a personal representative of the estate of a defendant is not a successor to an interest of a purported defendant in a pending action so as to permit the application of Rule [Plaintiff] seeks to substitute, under Pa.R.Civ.P. 2352, [defendant s] personal representative as a party in the action originally commenced against [defendant]. At the time of [defendant s] death, the action against him had not been commenced and, obviously, he had not been served with any process against him in any action and, therefore, [defendant] never became a party to a pending action. Rule 2351 defines a successor as anyone who by operation of law, election or appointment has succeeded to the interest or office [o]f a party to an action.... Rule 2352(a) and (b) provides the method for the substitution in a pending action of a successor to a party to a pending action. Ehrhardt v. Costello, 264 A.2d 620, 622 (Pa. 1970) (some emphasis and footnote omitted; emphasis added). Appellant attempts to distinguish Thompson, supra; Valentin, supra; and Montanya, supra. (See Appellant s Brief, at 9-10). He maintains that the more appropriate authority is Lovejoy v. Georgeff, 303 A.2d 501 (Pa. Super. 1973) (en banc). (See id. at 10-11). Appellant s reliance is misplaced. He misapprehends the holding of the case

5 Appellant claims that in Lovejoy this Court determined that substitution of an estate was appropriate because the Plaintiff had taken appropriate steps to notify the Administrator of the Estate prior to the running of the statute of limitations that a cause of action occurred. (Id. at 11). To the contrary, this Court in Lovejoy affirmed an order granting a motion for judgment on the pleadings, agreeing with the trial court that the statute of limitations for personal injury actions had run in favor of the estate of an alleged tortfeasor. See Lovejoy, supra at 501. The Lovejoy Court rejected the plaintiffs /appellants arguments that the issuance of a writ of summons tolled the statute of limitations with respect to the estate; that the statute of limitations did not begin to run in favor of the estate until the date on which letters of administration were issued; and that they had been deprived of the full duration of the statute of limitations period in derogation of their constitutional right to equal protection of the laws. See id. at Here, the trial court properly sustained the preliminary objections. Appellant s claim does not merit relief. Order affirmed

6 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/3/