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IN THE SUPERIOR COURT
OF PENNSYLVANIA
No. 826 EDA 2021
Appeal from the Order Entered November 2, 2020
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 181003685
EFORE: STABILE, J., MCCAFFERY, J. AND PELLEGRINI, J.*
DISSENTING OPINION BY STABILE, J.
FILED MARCH 21, 2023
I respectfully dissent. When a plaintiff files a complaint or writ of
summons on behalf of an estate within the applicable statute of limitations
but has not yet been appointed as personal representative to do so, the action
is considered a legal nullity, unless the plaintiff petitions within the statute of
limitations for appointment as the personal representative of the estate1 and
the appointment is substantially assured. See Estate of Gasbarini v.
Medical Ctr. of Beaver Cnty., 409 A.2d 343 (Pa. 1979); D'Orazio v. Locust
Lake Vill., Inc., 406 A.2d 550 (Pa. Super. 1979); McGuire v. Erie
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
See 20 Pa.C.S.A. § 3153 (prescribing contents of petition for grant of letters
testamentary when decedent dies testate or for grant of letters of
administration when decedent dies intestate).
B
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J-A20039-22
2023 PA SUPER 45
DENIA EDWARDS, PERSONAL
REPRESENTATIVE OF THE ESTATE OF
DOUGLAS A. EDWARDS,
Appellee
v.
NORFOLK SOUTHERN RAILWAY
COMPANY,
Appellant
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Lackawanna Ry. Co., 385 A.2d 466 (Pa. Super. 1978). The failure to both
file the suit and petition for appointment as personal representative within the
statute of limitations is fatal to the action. In the present case, Edwards
fulfilled the first condition by filing a complaint prior to expiration of the statute
identifying herself as personal representative of her late husband’s estate.
She failed, however, to satisfy the second condition by neglecting to file a
petition for appointment as personal representative before the statute
expired. As a result, the relation back doctrine does not rescue Edwards’
action, and the civil action she filed was a legal nullity. The trial court erred
by denying Norfolk Southern’s motion for summary judgment.
It is well-settled that “a dead man cannot be party to an action, and any
such attempted proceeding is completely void and of no effect.” Prevish v.
Northwest Medical Center Oil City Campus, 692 A.2d 192, 201 (Pa. Super.
1997) (en banc). All actions that survive a decedent must be brought by or
against the personal representative of the estate. Marzella v. King, 389 A.2d
659, 660-61 (Pa. Super. 1978). An action brought by or against an estate
lacking a personal representative is void. Prevish, 692 A.2d at 201.
In limited circumstances, however, courts have applied an exception
called the “relation back doctrine” to validate the acts of the personal
representative which precede the date of her official appointment. Relation
back applies when, before the statute of limitations expires, the plaintiff
petitions for appointment as personal representative of the decedent’s estate
and files an action identifying herself as personal representative. McGuire,
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385 A.2d at 468. Relation back applies even though the personal
representative’s appointment is not finalized, because her timely petition
“substantially assure[s]” her appointment as personal representative. Id.
Here, Edwards filed a complaint within the statute of limitations
purporting to identify herself as personal representative, but she failed to
petition for appointment as personal representative before the statute
expired. She waited two months after the statute expired before moving for
appointment as personal representative. Nevertheless, the majority insists
that relation back applies to the present case based on its study of Gasbarini,
D’Orazio, McGuire, Prevish, and a Commonwealth Court decision, Wilkes-
Barre Gen. Hospital v. Lesho, 435 A.2d 1340 (Pa. Cmwlth. 1981). See
Majority Op. at 16-23 (discussion section). I am constrained to disagree with
the majority’s construction of these decisions.
In my view, the majority’s decision runs afoul of the decision by our
Supreme Court in Gasbarini and our own decisions in D’Orazio and
McGuire. In each of these cases, the plaintiff filed a complaint or writ of
summons within the statute of limitations that identified the plaintiff as the
administrator of the decedent’s estate. The plaintiff applied for letters of
administration before the statute expired, but letters were not issued until
after the statute expired due to the plaintiff’s failure to post or execute a bond.
All three decisions held that relation back applied because the plaintiff timely
initiated the lawsuit and filed for letters before the statute expired.
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The Supreme Court held in Gasbarini that relation back applied
because the plaintiff timely filed a civil action and applied for letters within
the statutory period. Only because the plaintiff satisfied both factors did the
Court decide that her appointment as administrator was “substantially
assured” at the time she filed her action. Id., 409 A.2d at 346. This Court’s
earlier decision in McGuire was cited at length in Gasbarini. Indeed, our
Supreme Court held that “the instant case [Gasbarini] is on all fours with
McGuire and . . . [McGuire’s] reasoning is persuasive.” Id. D’Orazio is
congruent with Gasbarini as well, particularly wherein we stated:
Although [D’Orazio] was finally granted letters much longer after
the statute’s running than was Mr. McGuire, this fact does not alter
our disposition. The crucial factors are that letters had been
requested and the action commenced within the statutory
period, and appellant’s appointment as administratrix, under the
circumstances of this case, “was substantially assured at the time
the complaint was filed, ... within the statutory period of
limitations.
Id., 406 A.2d at 552 (emphasis added).2
Under Gasbarini, McGuire, and D’Orazio, relation back does not apply
due to Edwards’ failure to satisfy the “crucial” requisite of petitioning for
appointment as personal representative during the limitations period. The
majority attempts to downplay the “crucial factors” passage by stating:
In [D’Orazio], the plaintiff mother did not obtain the letters of
administration until about a year-and-a-half after the statute had
run, which was substantially longer than the delay in McGuire.
____________________________________________
2 I refer to this passage below as the “crucial factors passage” or “the
passage.”
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Thus, read in context, the D’Orazio court’s statement that it was
“crucial” that the plaintiff request the letters before the statute
had run was meant to answer the concern that the plaintiff mother
was not granted the letters until “much longer after the statute’s
running than [the plaintiff in McGuire.]”
ajority Op. at 21. This passage does more than address the concern that
M
the plaintiff was not granted letters until much later than the plaintiff in
McGuire. It demonstrates what is and what is not “crucial” for the relation
back doctrine to apply. It teaches that relation back does not depend on
whether letters are granted immediately after the statute expires or
substantially after the statute expires. Instead, the only factors that matter
for relation back—the “crucial factors”—are whether the plaintiff commences
the action before the statute and requests letters before the statute expires.
If the plaintiff satisfies both factors, as the plaintiff did in D’Orazio (and in
Gasbarini and McGuire), relation back applies. If the plaintiff fails one of
these factors, as Edwards did here, or both factors, relation back does not
apply.
The majority also relies heavily on Lesho, which held that relation back
applied even though the personal representative failed to petition for
appointment as personal representative prior to the statute of limitations. As
a Commonwealth Court opinion, Lesho is not binding on this Court but is at
most persuasive authority, a point the majority concedes. Majority Op. at 21
n.7. In my view, Lesho reached the right result but for the wrong reason.
The reason given flies in the face of Gasbarini, McGuire and D’Orazio.
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In Lesho, a wrongful death action, two months after the decedent died,
her parents filed a petition in the Orphans' Court to settle her estate under
Section 3102 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §
3102. The petition was granted. Subsequently, the plaintiffs filed a timely
complaint in the Arbitration Panels for Health Care identifying themselves as
administrators of the decedent’s estate. The plaintiffs neither applied for nor
were granted letters of administration until after the statute of limitations had
run. Nevertheless, the Commonwealth Court held that relation back applied,
Absolutely nothing was changed in the [plaintiffs’] complaint by
virtue of letters of administration having been granted to them
after the statute of limitations had run. From the time the original
complaint was filed, the [defendants] were aware that they were
being sued for their alleged negligence resulting in the death of a
named decedent. Every element necessary to establish the two
causes of action against the [defendants] was set forth in the
complaint, including the erroneous fact that the [plaintiffs] had
been appointed administrators of their daughter’s estate.
d., 435 A.2d at 1343. This passage is unpersuasive because it conflicts with
I
Gasbarini, McGuire and D’Orazio, which all drive home that the
appointment of the personal representative—and his right to prosecute an
action on behalf of the estate—is not substantially assured unless she petitions
for appointment as personal representative before the statute of limitations
expires. When the plaintiff fails to take this step before the statute expires,
there is no guarantee that she will ever take this step. The majority endorses
Lesho’s passage, reasoning that relation back applies when the plaintiff fails
stating:
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to petition for letters during the limitation period so long as the defendant is
notified of the action before the statute expires. Majority Op. at 15, 22-23.
The majority goes on to say that Edwards placed Norfolk Southern on notice
of her action, and satisfied the relation back doctrine, by filing the complaint
during the limitation period. Under Gasbarini, McGuire and D’Orazio,
however, it is entirely irrelevant whether the defendant is notified of the action
during the limitation period. The focus of these decisions is what the plaintiff
does, not what the defendant learns, before the statute expires. Since
Edwards failed to petition for letters before the statute expired, her action is
a legal nullity, regardless of whether Norfolk Southern was notified of the
action during the limitation period.
In my view, a better reason existed for applying relation back in Lesho.
Long before the statute expired in Lesho, the decedent’s parents filed a
petition in the Orphans' Court to settle their daughter's estate under 20
Pa.C.S.A. § 3102, which petition was granted. Section 3102, pertaining to
small estates, provides in part that when any person dies domiciled in the
Commonwealth owning property of a gross value not exceeding $50,000
(excluding certain real estate and other payments), upon petition of any party
in interest, the court has the discretion, whether or not letters have been
issued or a will probated, to direct distribution of the property to the entitled
parties. The decree of distribution constitutes sufficient authority to the world
that the persons named therein are entitled to distribution without
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administration, and it has the same effect as a decree of distribution after an
accounting by a personal representative. Essentially, Section 3102 treats
successful petitioners as having received letters of administration without
formally applying for them. Thus, in Lesho, I believe the better reason for
applying relation back was because the decedent’s parents petitioned for their
daughter’s small estate distribution before the statute of limitations expired.
This rationale is consistent with Gasbarini, McGuire and D’Orazio, because
like the plaintiffs in these cases, the decedent’s parents took sufficient action
before the statute of limitations to substantially assure that an estate would
be raised. Lesho itself suggests this rationale in dicta wherein it was stated,
“[i]t is possible that the [parents] really thought they were the administrators
of their daughter’s estate because of their previous petition and proceeding
before the Orphans’ Court. . .” Id. at 1343.
The last case relied upon by the majority, Prevish, does not address
the issue presently before us. There, several days before the statute of
limitations expired, the plaintiff filed a writ of summons that identified the
plaintiff as “Estate of Judith A. Bills, Deceased.” The writ failed to identify the
plaintiff as the executor of the estate. As such, the writ was a nullity, because
actions cannot be brought by dead men or by estates lacking a personal
representative. Id., 692 A.2d at 201. After the statute expired, the plaintiff
filed a complaint identifying himself as the executor of the estate. The record
was “unclear” as to when the plaintiff applied for letters testamentary or when
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they were issued. Id. at 205 n.2 (Schiller, J., concurring).3 The Court held
that relation back did not apply because the only document filed before the
statute expired, the writ of summons, was a nullity that failed to identify the
executor or notify the defendants that there was, even potentially, an
executor. Id. at 204. This omission created “the sort of instability that
statutes of limitation seek to preclude.” Id. at 205.
The issue in Prevish is different than the issue in the present case. The
issue before us is whether relation back applies due to Edwards’ failure to
apply for appointment as personal representative within the statute of
limitations. The issue in Prevish was whether relation back applied under
different circumstances, namely when a timely filed writ of summons failed to
identify the plaintiff as personal representative of the estate. All that Prevish
said about the issue before us was that the record was “unclear” when the
plaintiff moved for letters testamentary. Id. at 205 n.2. Because Prevish
does not speak to the issue that concerns us, I believe the majority’s reliance
upon Prevish is misplaced.
None of the cases relied upon by the majority support the application of
relation back to this action. Edwards was not the personal representative of
the estate at the time she filed this action, and she failed to cure this defect
by filing a petition within the statute of limitations for appointment as personal
____________________________________________
3 The majority opinion in Prevish was silent on when the plaintiff applied for
or obtained letters.
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representative. Thus, her action is a legal nullity and is not rescued by the
relation back doctrine. Relation back does not cure the lack of a personal
representative—the defect that otherwise renders the action a nullity—unless
the plaintiff takes a sufficient step during the limitations period to ensure that
an estate is raised. When, as here, the plaintiff fails to take any step to raise
an estate until after the statute of limitation expires, relation back cannot be
used to breathe life back into the plaintiff’s lawsuit.
Since relation back doctrine does not apply to this case, the trial court
should have granted summary judgment to Norfolk Southern. I respectfully
submit that the proper course of action is to reverse the trial court’s order
denying summary judgment to Norfolk Southern and remand with instructions
to enter summary judgment in its favor.
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