William H. Pugh, IV, Norristown, for appellants.
James S. Kilpatrick, Jr., Haws & Burke, Ardmore, for appellee, Gloria Gilberti, Admrx. of Est. of Joseph L. Gilberti.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a dissenting opinion.
Appeal dismissed as improvidently granted. Costs on appellants.
POMEROY, Justice (dissenting).
The petition for leave to appeal presented the important question of the validity of a judgment obtained against a defendant who to the knowledge of everyone concerned had died after commencement of suit, but before trial, and where neither the personal representative nor any other successor in interest was substituted as a party. Because I believe that such a judgment is absolutely null and void, I must dissent from the court's action today, which has the effect of ratifying the empty proceeding in the trial court and leaving in effect the Superior Court's affirmance of a shadow judgment against a nonentity. See and compare Com. v. Walker, 447 Pa. 146, 151, 288 A.2d 741, 744 (1972) (dissenting opinion of this writer).
An action in trespass for the wrongful death of plaintiff's decedent was brought on March 29, 1965 against Robert J. Compton and Evangeline Payne. On April 27, 1971 a Suggestion of Death was filed by counsel for Mr. Compton indicating that Compton had died on August 14, 1970. No steps were taken to substitute a successor to Compton as a party defendant but the action was
nonetheless allowed to proceed to trial. A jury returned a verdict in favor of appellee and against Compton and Evangeline Payne in the amount of $71,500.
For many years our statutes, and now our rules, have provided that the death of a party does not normally terminate an action, but that it may be continued against his estate, provided the personal representative of the deceased defendant is substituted. See Act of June 7, 1917, P.L. 447, No. 193, as amended, 20 P.S. §§ 777, 778; also the Act of May 7, 1923, P.L. 150, No. 113, 20 P.S. § 779 (now superseded as to procedure for substitution by Pa. R.C.P. 2375, 12 P.S. Appendix); Pennsylvania Rules of Civil Procedure 2351-2374. I would have supposed it to be elementary and fundamental that a court cannot proceed to trial against a person who is not living and whose personal representative has not been substituted in his place. That, however, is what was done in this case. Notwithstanding that all parties and the court knew that Compton had died, they engaged in a charade in which it was pretended that Compton was still alive.
The proper procedure for the substitution of a successor when a party to a pending action dies is set forth in Rule 2352 of the ...