Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1968, No. 1493, in case of Morris Schor et al. v. Clarence D. Becker.
Saul L. Friedman, with him James L. Rosenbaum, for appellants.
Manfred Farber, for amicus curiae.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones.
This appeal involves the validity of a trespass action instituted for the recovery of damages for personal injuries.*fn1 Appellants state the issue as follows: whether they are precluded from maintaining an action against the estate of a deceased defendant when the action was "commenced" prior to defendant's death, defendant died prior to service of process being made, and the appellants were not aware of defendant's death until advised thereof more than one year after the statute of limitations had run.
Morris Schor was the operator of a motor vehicle, owned by Harry Stein and wherein Mary Fuller was a passenger, which was involved in an accident with a motor vehicle owned and operated by one Clarence Becker on March 7, 1966. On February 21, 1968 -- fifteen days prior to the expiration of the two-year period of the statute of limitations -- counsel for Schor, Fuller and Stein (appellants) filed a praecipe for a writ of summons against Becker in the Court of Common Pleas of Philadelphia County. The writ of summons was issued but never served on Becker.*fn2 Up to the time of oral argument of this appeal, appellants did not reissue the writ and Becker died, unserved with the writ of summons, on March 25, 1968. At the time of his death, Becker was not a party to any action instituted by appellants. On February 24, 1969, appellants filed
a complaint in trespass*fn3 to the same term and number against Becker. That complaint was never, nor could it have been, served upon Becker. On April 21, 1969, appellants then sought to proceed under Pa. R. Civ. P. 2077(a)(1) and 2079 (a)(1) and (2) by serving, by registered mail, the Secretary of the Commonwealth and Becker at his last known address.*fn4
There is nothing on this record to show the appointment of a personal representative for Becker's estate. However, Edward R. O'Brien, a nephew of Becker, the presently-styled "amicus curiae," appeared in the court below and filed a pleading termed "Preliminary Objections to Complaint Against and Service on Deceased Defendant," on the basis of which the court below entered its order sustaining such objections. O'Brien, although not a party of record, filed the preliminary objections above referred to in the court below, which objections led to the order from which the instant appeal was taken and, in fact, was the "moving party" in the court below. O'Brien appeared, through counsel, in our Court, as amicus curiae and, at oral argument, it was made evident that his intervention into the litigation was inspired by Becker's insurance carrier.
It is clear, beyond any question, that O'Brien lacked any standing whatsoever to challenge the validity of the instituted action. It follows that his pleading upon which the order below was entered could not and should not have been considered. Only a party having
standing could file this pleading and O'Brien clearly did ...