Marzella v. King

Superior Court of Pennsylvania

Marzella v. King

389 A.2d 659, 256 Pa. Super. 179, 1978 Pa. Super. LEXIS 3099

CourtSuperior Court of Pennsylvania

DecidedJuly 12, 1978

Docket917

StatusPublished

Cited by27 cases

This text of 389 A.2d 659 (Marzella v. King) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marzella v. King, 389 A.2d 659, 256 Pa. Super. 179, 1978 Pa. Super. LEXIS 3099 (Pa. Ct. App. 1978).

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PRICE, Judge:

This is an appeal from the lower court’s order granting appellees’ motions to dismiss and denying appellants leave to amend their complaint, after the running of the statute of limitations, to name the administrator of an estate as a party! For the reasons stated herein, we affirm.

[181]*181Our reading of the record discloses the following pertinent facts. On December 22, 1973, Anthony Marzella fell and was injured when he attempted to make a delivery at the George King residence. On December 19, 1975, only days before the applicable statute of limitations would have run,¹ appellants filed a praecipe for a writ of summons in trespass. Also on that date, letters of administration were issued to David A. Whitney as administrator of the estate of George King. Appellants’ praecipe, naming Florentine King and the estate of George King as defendants, clearly evidences appellants’ knowledge of Mr. King’s death. Still, appellants made no effort to revise the praecipe to designate the administrator as a party. On September 21, 1976, a complaint was filed that also named Mrs. King and the estate as defendants. On October 29, 1976, Mrs. King and Mr. Whitney filed preliminary objections to the complaint. Appellees asserted, inter alia, that motions to dismiss should be granted because of the complaint’s lack of conformity to the law in (1) failing to name the estate’s administrator as a defendant, and (2) failing to join a necessary party. Thus alerted, on November 18, 1976, appellants filed a petition requesting permission to amend the caption to include Whitney as administrator.

It is well settled that all actions that survive a decedent must be brought by or against the personal representative. McGuire v. Erie Lackawanna Railway Co., 253 Pa.Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 501 (1973); 20 Pa.C.S. § 3373. Further, a decedent’s estate cannot be a party to litigation unless a personal representative exists. Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). Our research has uncovered numerous cases in which an action had been commenced against a decedent and efforts were subsequently undertaken, after the running of the statute of limitations, to substitute the administrator of the decedent’s estate as the [182]*182proper party. E. g., Ehrhardt v. Costello, supra; Thompson v. Peck, supra. For example, in Thompson v. Peck, supra, although Peck died on December 3, 1933, he was the named defendant in an action filed on September 20, 1934. On December 22, 1934, Thompson petitioned for leave to amend the caption to name Peck’s executors as the proper parties. The petition was granted and on appeal the supreme court reversed, stating:

“It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action [citations omitted], and any such attempted proceeding is completely void and of no effect [citation omitted]. This disposes of the further argument that the defect was cured by the amendment. There can be no amendment where there is nothing to amend. In any event, an amendment the effect of which, is to bring in new parties after the running of the statute of limitations will not be permitted [citations omitted]. No proceedings were taken against defendants until after the expiration of the year provided for by the statute; it follows that the action is barred.” 320 Pa. at 30, 181 A. at 598 (emphasis added).

Lovejoy v. Georgeff, supra, is a case-similar to the instant one. There the plaintiff did not name the decedent as the defendant, but rather made some effort to identify the decedent’s estate. We found that where a trespass action was commenced within the statute of limitations against an individual as administrator of an estate, the actual issuance of letters to the named individual after the statute had run would not be held to relate back to the time when the praecipe for the writ’s issuance was entered. Although Lovejoy came to us in a slightly different posture, it would be totally inconsistent for this court to have penalized Love-[183]*183joy, who at least correctly anticipated the naming of the deceased’s father as administrator, and now to find in appellants’ favor in the instant appeal. Lovejoy contrasts with the instant case, because there the plaintiff, in preparing to file suit, had the register of wills notify the deceased’s parents that letters of administration had been applied for and direct them to appear and to take some action with regard to the application. The notification to the deceased’s parents permitted them time to report to the register of wills beyond the time of the running of the statute of limitations on the plaintiff’s action. Letters were in fact issued after suit had been filed and after the statute had run. In the case before us, plaintiffs made no effort to ensure that an administrator would be appointed prior to the running of the statute of limitations on their action.

The most important point of our decision in Lovejoy is that a plaintiff in an action against a decedent’s estate must take affirmative steps to secure the appointment of an administrator prior to the running of the statute of limitations or his cause of action will be lost. In Lovejoy, we commented favorably on an Ohio Supreme Court decision, Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E.2d 587 (1963). There, a plaintiff in a trespass action filed within the applicable statute of limitations for letters of administration. The letters were not granted, however, until after the statute had run. The court did not permit amendment of the caption to name the subsequently appointed administrator as the correct party defendant. The Ohio court declared:

“Plaintiff had immediate knowledge of the death of the decedent and a course of action to pursue. [Pjlaintiff had the power to secure the appointment of an administrator within the statutory period of limitation. In fact, plaintiff was aware of this but failed, through his own lack of diligence, to perfect the appointment. Plaintiff’s failure should not lead to the relaxation of what we think should be the sounder rule in such instances, that is, where one has a claim against an estate, it is incumbent upon him, if no administrator has been appointed, to [184]*184procure the appointment of an administrator against whom he can proceed.” 174 Ohio St. at 237-38, 188 N.E.2d at 591.

Even if we chose to ignore precedent and to engage in a balancing of the equities involved, we would still affirm the order of the lower court. First, appellants made no effort to secure the appointment of an administrator prior to the running of the statute. Secondly, the sheriff’s returns demonstrate that the administrator received no notice of the action or copy of the complaint.

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PRICE, Judge:

This is an appeal from the lower court’s order granting appellees’ motions to dismiss and denying appellants leave to amend their complaint, after the running of the statute of limitations, to name the administrator of an estate as a party! For the reasons stated herein, we affirm.

[181]*181Our reading of the record discloses the following pertinent facts. On December 22, 1973, Anthony Marzella fell and was injured when he attempted to make a delivery at the George King residence. On December 19, 1975, only days before the applicable statute of limitations would have run,¹ appellants filed a praecipe for a writ of summons in trespass. Also on that date, letters of administration were issued to David A. Whitney as administrator of the estate of George King. Appellants’ praecipe, naming Florentine King and the estate of George King as defendants, clearly evidences appellants’ knowledge of Mr. King’s death. Still, appellants made no effort to revise the praecipe to designate the administrator as a party. On September 21, 1976, a complaint was filed that also named Mrs. King and the estate as defendants. On October 29, 1976, Mrs. King and Mr. Whitney filed preliminary objections to the complaint. Appellees asserted, inter alia, that motions to dismiss should be granted because of the complaint’s lack of conformity to the law in (1) failing to name the estate’s administrator as a defendant, and (2) failing to join a necessary party. Thus alerted, on November 18, 1976, appellants filed a petition requesting permission to amend the caption to include Whitney as administrator.

It is well settled that all actions that survive a decedent must be brought by or against the personal representative. McGuire v. Erie Lackawanna Railway Co., 253 Pa.Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 501 (1973); 20 Pa.C.S. § 3373. Further, a decedent’s estate cannot be a party to litigation unless a personal representative exists. Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). Our research has uncovered numerous cases in which an action had been commenced against a decedent and efforts were subsequently undertaken, after the running of the statute of limitations, to substitute the administrator of the decedent’s estate as the [182]*182proper party. E. g., Ehrhardt v. Costello, supra; Thompson v. Peck, supra. For example, in Thompson v. Peck, supra, although Peck died on December 3, 1933, he was the named defendant in an action filed on September 20, 1934. On December 22, 1934, Thompson petitioned for leave to amend the caption to name Peck’s executors as the proper parties. The petition was granted and on appeal the supreme court reversed, stating:

“It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action [citations omitted], and any such attempted proceeding is completely void and of no effect [citation omitted]. This disposes of the further argument that the defect was cured by the amendment. There can be no amendment where there is nothing to amend. In any event, an amendment the effect of which, is to bring in new parties after the running of the statute of limitations will not be permitted [citations omitted]. No proceedings were taken against defendants until after the expiration of the year provided for by the statute; it follows that the action is barred.” 320 Pa. at 30, 181 A. at 598 (emphasis added).

Lovejoy v. Georgeff, supra, is a case-similar to the instant one. There the plaintiff did not name the decedent as the defendant, but rather made some effort to identify the decedent’s estate. We found that where a trespass action was commenced within the statute of limitations against an individual as administrator of an estate, the actual issuance of letters to the named individual after the statute had run would not be held to relate back to the time when the praecipe for the writ’s issuance was entered. Although Lovejoy came to us in a slightly different posture, it would be totally inconsistent for this court to have penalized Love-[183]*183joy, who at least correctly anticipated the naming of the deceased’s father as administrator, and now to find in appellants’ favor in the instant appeal. Lovejoy contrasts with the instant case, because there the plaintiff, in preparing to file suit, had the register of wills notify the deceased’s parents that letters of administration had been applied for and direct them to appear and to take some action with regard to the application. The notification to the deceased’s parents permitted them time to report to the register of wills beyond the time of the running of the statute of limitations on the plaintiff’s action. Letters were in fact issued after suit had been filed and after the statute had run. In the case before us, plaintiffs made no effort to ensure that an administrator would be appointed prior to the running of the statute of limitations on their action.

The most important point of our decision in Lovejoy is that a plaintiff in an action against a decedent’s estate must take affirmative steps to secure the appointment of an administrator prior to the running of the statute of limitations or his cause of action will be lost. In Lovejoy, we commented favorably on an Ohio Supreme Court decision, Wrinkle v. Trabert, 174 Ohio St. 233, 188 N.E.2d 587 (1963). There, a plaintiff in a trespass action filed within the applicable statute of limitations for letters of administration. The letters were not granted, however, until after the statute had run. The court did not permit amendment of the caption to name the subsequently appointed administrator as the correct party defendant. The Ohio court declared:

“Plaintiff had immediate knowledge of the death of the decedent and a course of action to pursue. [Pjlaintiff had the power to secure the appointment of an administrator within the statutory period of limitation. In fact, plaintiff was aware of this but failed, through his own lack of diligence, to perfect the appointment. Plaintiff’s failure should not lead to the relaxation of what we think should be the sounder rule in such instances, that is, where one has a claim against an estate, it is incumbent upon him, if no administrator has been appointed, to [184]*184procure the appointment of an administrator against whom he can proceed.” 174 Ohio St. at 237-38, 188 N.E.2d at 591.

Even if we chose to ignore precedent and to engage in a balancing of the equities involved, we would still affirm the order of the lower court. First, appellants made no effort to secure the appointment of an administrator prior to the running of the statute. Secondly, the sheriff’s returns demonstrate that the administrator received no notice of the action or copy of the complaint. When the summons and complaint were filed against the King estate those documents failed to designate a legal, competent entity as defendant. Appellants will not be permitted to substitute a different party after the statute of limitations has already run. Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971).

The order of the lower court is affirmed.

JACOBS, President Judge, and CERCONE and VAN der VOORT, JJ., join in this opinion. HOFFMAN, J., concurs in the result. SPAETH, J., files a dissenting opinion. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

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389 A.2d 659, 256 Pa. Super. 179, 1978 Pa. Super. LEXIS 3099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marzella-v-king-pasuperct-1978.

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