By William T. MacMinn, Esquire Reprinted with permission from the January 25, 2014 issue of The Legal Intelligencer. (c)
2014 ALM Media Properties. Further duplication without permission is prohibited.
Of all the steps involved in litigating an action, one of the most important is correctly identifying the opposing party. While this step may seem to be the most obvious part of the process, misidentifying the defendant can prove fatal to the underlying cause of action—and this particularly is true where the defendant, unbeknownst to a lawyer and his or her client, dies before legal proceedings begin. Even though the Pennsylvania Rules of Civil Procedure permit a party “at any time [to] change the form of action, correct the name of a party or amend his pleading,” the door to this liberal right to amend slams closed once the statute of limitations on the underlying claim expires.
These principals create a trap for the unwary in situations where the opposing party dies before a plaintiff could, or should have, filed the original cause of action. The Supreme Court of Pennsylvania long has held that “the death of an individual renders suit against him or her impossible where an action is not commenced prior to death.” Myers v. Estate of Wilks, 655 A.2d 176, 178 (Pa. Super. 1995) (citing Erhardt v. Costello, 264 A.2d 620, 623 (Pa. 1970)). Practically speaking, then, any complaint filed against someone after that person has died is a legal nullity rendering any attempt to amend such a pleading void.
Thus, while filing a writ of summons or a complaint typically serves to toll the statute of limitations, filing against a deceased defendant will not do so. No relief is provided by the Pennsylvania Probate, Estate, and Fiduciaries Code which expressly provides that “the death of a person shall not stop the running of the statute of limitations”. 20 Pa. C.S. § 3383. Put simply, the statute of limitations on the underlying cause of action continues to run as if the plaintiff had taken no action at all.
Section 3383 provides some additional time to take action. It extends the statute of limitations one year from the date of the defendant’s death, only if the defendant died within one year of the date on which the statute on the underlying claim would expire. Id.
The Pennsylvania Superior Court recently applied these principles in McClean v. Djerassi, 2013 Pa. Super. LEXIS 4578 (Pa. Super. 2013), a slip and fall action on appeal from the Philadelphia Court of Common Pleas. In McClean, Appellant fell in front of property owned by Isaac Djerassi (“Defendant”) on April 6, 2010. Unbeknownst to Appellant, Defendant died on November 4, 2011. The date of death is within one year of the running of the two year statute of limitations on the underlying negligence claim. Under §3383, the statute of limitations was extended to one year from the date of death, or November 4, 2012.
Plaintiff filed the complaint on March 29, 2012, mere days before the (original) two-year statute of limitations was set to expire. See 42 Pa. C.S. § 5524(2). He attempted to serve Defendant on April 9, 2012, but learned shortly thereafter, through an affidavit filed by the process server, that Defendant had passed away. Inexplicably, he took no further action until January 21, 2013 (after the November running of the death-extended statute) when he filed an Amended Complaint. The trial court ultimately held that “Appellant’s Amended Complaint was void because the sole defendant was a dead person,” and added that the only way to cure the misstep would have been to file a new complaint, this time naming the Administrator or Executor of the Estate. McClean, 2013 Pa. Super. at *4. On appeal, the Superior Court upheld the lower court’s ruling. It reasoned that Appellant’s original complaint against Defendant was “void and of no effect, as Defendant was deceased at the time of filing,” and that the statute of limitation was tolled only until November 4, 2012, one year following Defendant’s death. Id. at *11; See 20 Pa. C.S. § 3383. As Appellant took no action to effectively toll the statute during this period, the action was time barred.
McClean is one of many examples of unwary plaintiffs falling victim to an unwitting failure to timely identify and sue the correct opposing party. When a plaintiff discovers that the putative defendant has passed away prior to the running of the statute it is easy enough to file suit against the estate … if there is one. What happens when there isn’t?
The Probates, Estates and Fiduciaries Code permits a creditor, such as a personal injury plaintiff, to raise an estate for the deceased defendant. To do so, the plaintiff must file a petition in the Orphan’s Court to appoint a personal representative. The Court will issue a citation which must be served on known heirs. Once the petition is adjudicated – a process that may take a month or more- the Court will order that an estate be raised naming a person nominated by the Petitioner as the personal representative. Then, and only then, can the plaintiff institute his cause of action tolling the statute.
To avoid falling into this trap, cautious practitioners should file well before the expiration of the statute of limitations and diligently monitor service. Prompt action to raise an estate, if necessary, and then file a complaint (and not amend the first filing) naming the personal representative will be required to avoid the bar of the statute of limitations.