winchell v. lubinski

Vermont Superior Court

winchell v. lubinski

DecidedApril 2, 2024

StatusPublished

This text of winchell v. lubinski (winchell v. lubinski) is published on Counsel Stack Legal Research, covering Vermont Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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winchell v. lubinski, (Vt. Ct. App. 2024).

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Opinion

STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Rutland Unit Docket No. 206-3-11 Rdcv ROBERT WINCHELL,

Plaintiff CON KORN

VERM OE MED (ay; , EMON?p suPERoR oe THOMAS LUBINSKI Ov ~é 2011 3 Defendant RUTLAND DECISION

Plaintiff’s Motion for Reconsideration

Thomas Lubinski, the defendant in this suit, died in February 2011. Plaintiff Robert Winchell filed his Complaint on March 29, 2011. Defendant’s attorney subsequently filed a Motion to Dismiss on the grounds that Mr. Lubinski was deceased at the time of the commencement of the suit. On September 2, 2011, the court granted the Motion to Dismiss. Plaintiff filed the present Motion for Reconsideration on September 13, 2011.

Plaintiff bases his argument in favor of reconsideration on 12 V.S.A. § 557(a), which tolls the running of the statute of limitations upon the death of a party. As the estate of Thomas Lubinski was opened on August 5, 2011, the statute allows Plaintiff to initiate a new suit against the estate at any time before August 5, 2013. Plaintiff argues that, because a new suit would be allowed under this statue, the court should allow him to amend his original complaint and name the estate as a defendant.

Plaintiff's argument ignores the jurisdictional basis for the dismissal of his action. As the authorities collected in the previous opinion evidence, the death of a defendant prior to the commencement of a suit leaves the court without subject matter jurisdiction to hear the case. See, e.g., Glover v. State Farm Mut. Auto. Ins. Co., 950 A.2d 335, 339 (Pa. Super. Ct. 2008). Though this rule may strike Plaintiff as a technicality, the court is powerless to allow amendment or grant any other form of relief when it lacks subject matter jurisdiction. In the eloquent phrase of the Glover court, “there is, technically, nothing to amend.” Jd.

Accordingly, Plaintiff's Motion for Reconsideration is denied. Dated at Rutland, Vermont this 2nd day of November, 2011.

Hon. Mary Miles Teachout Superior Judge

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION Rutland Unit Docket No. 206-3-11 Rdcv ROBERT WINCHELL,

Plaintiff CON KORN

VERM OE MED (ay; , EMON?p suPERoR oe THOMAS LUBINSKI Ov ~é 2011 3 Defendant RUTLAND DECISION

Plaintiff’s Motion for Reconsideration

Thomas Lubinski, the defendant in this suit, died in February 2011. Plaintiff Robert Winchell filed his Complaint on March 29, 2011. Defendant’s attorney subsequently filed a Motion to Dismiss on the grounds that Mr. Lubinski was deceased at the time of the commencement of the suit. On September 2, 2011, the court granted the Motion to Dismiss. Plaintiff filed the present Motion for Reconsideration on September 13, 2011.

Plaintiff bases his argument in favor of reconsideration on 12 V.S.A. § 557(a), which tolls the running of the statute of limitations upon the death of a party. As the estate of Thomas Lubinski was opened on August 5, 2011, the statute allows Plaintiff to initiate a new suit against the estate at any time before August 5, 2013. Plaintiff argues that, because a new suit would be allowed under this statue, the court should allow him to amend his original complaint and name the estate as a defendant.

Plaintiff's argument ignores the jurisdictional basis for the dismissal of his action. As the authorities collected in the previous opinion evidence, the death of a defendant prior to the commencement of a suit leaves the court without subject matter jurisdiction to hear the case. See, e.g., Glover v. State Farm Mut. Auto. Ins. Co., 950 A.2d 335, 339 (Pa. Super. Ct. 2008). Though this rule may strike Plaintiff as a technicality, the court is powerless to allow amendment or grant any other form of relief when it lacks subject matter jurisdiction. In the eloquent phrase of the Glover court, “there is, technically, nothing to amend.” Jd.

Accordingly, Plaintiff's Motion for Reconsideration is denied. Dated at Rutland, Vermont this 2nd day of November, 2011.

Hon. Mary Miles Teachout Superior Judge

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