Swatt, A. v. Nottingham Village

2025 Pa. Super. 138

• Court: Superior Court of Pennsylvania
• Decided: July 2, 2025
• Docket: 1506 MDA 2021
• Status: Published

Opinion

J-E04002-24 2025 PA Super 138

ANN MARIE SWATT, PERSONAL : IN THE SUPERIOR COURT OF REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : Appellant : : : v. : : No. 1506 MDA 2021 : NOTTINGHAM VILLAGE; : NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; : LEEDS HEALTHCARE SERVICES, : INC.; SYNERGY GRANDVIEW : PHARMACY, LLC AND FREDERICK : KESSLER

Appeal from the Order Entered October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00830

JANICE HAWBAKER, ESQ., : IN THE SUPERIOR COURT OF EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : : v. : : : NOTTINGHAM VILLAGE; : No. 1507 MDA 2021 NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; AND : LEEDS HEALTHCARE SERVICES, INC. : : : APPEAL OF: ANN MARIE SWATT, : PERSONAL REPRESENTATIVE OF THE : ESTATE OF MADLYN BLUSIUS : J-E04002-24

Appeal from the Order Dated October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00005

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.

CONCURRING/DISSENTING OPINION BY KING, J.: FILED: JULY 2, 2025

I agree with the Majority to quash the appeal at 1507 MDA 2021,

concerning the Hawbaker docket, as premature. As well, I agree with the

Majority’s waiver analysis concerning Appellant’s challenge to the grant of

judgment on the pleadings to the Pharmacy. I further agree with the Majority

that the trial court properly granted summary judgment to the Nursing Home

concerning the tort claims, based on the statute of limitations.

Like Judge Stabile, I also concur in the result reached by the Majority as

to the contract claims that are premised upon the breach of express

contractual undertakings. As such, I agree with the Majority that those

contract claims survive the Nursing Home’s motion for summary judgment.

Nevertheless, I too, disagree with the Majority to the extent it holds that the

breach of only implied contractual duties may be sufficient for a breach of

contract action. On this point, I agree with the rationale set forth in Judge

Stabile’s concurring/dissenting opinion throughout the section titled “I. Gist of

the action.”

I part ways from Judge Stabile’s concurring/dissenting opinion

concerning his analysis of the relation back doctrine. While I agree with

President Judge Lazarus and Judge Stabile’s conclusion that the relation back

-2- J-E04002-24

doctrine does not save Elizabeth’s survival action, I cannot agree with the

rationale set forth by Judge Stabile concerning this doctrine. Judge Stabile

states that the doctrine applies when, before the statute of limitations expires,

the plaintiff files a civil complaint or writ of summons identifying herself as

personal representative and petitions for appointment as personal

representative of the decedent’s estate. According to Judge Stabile, the

failure to perform either of these steps within the statute of limitations renders

the action a legal nullity. This statement is at odds with this Court’s recent

decision in Edwards v. Norfolk Southern Railway Company, 2025 PA

Super 103 (Pa.Super. filed May 13, 2025) (en banc)1 (holding plaintiff’s failure

to seek appointment as personal representative before statute of limitations

ran did not compel dismissal of complaint where plaintiff was named executor

and averred that she was personal representative of decedent’s estate in

timely-filed complaint).

Nevertheless, I agree with the rationale set forth in the concurring

opinion of President Judge Lazarus as to why the relation back doctrine is

inapplicable here based on the actions taken by Elizabeth’s counsel in filing

the May 13, 2014 complaint.

____________________________________________

1 I acknowledge that Judge Stabile authored a dissenting opinion in Edwards,

to which Judge Sullivan concurred in the result.

-3-