No. 429 April Term 1976, Appeal from the Order of the Court of Common Pleas of Erie County, Pa. entered at No. 339 A 1974. (Civil Division)
Robert L. Walker, Meadville, for appellant.
Andrew J. Conner, Erie, for appellee.
Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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This is an appeal from an order denying a motion for summary judgment.
On February 2, 1972, Joy McGuire, then a high school student, was struck by an Erie Lackawanna freight train at a grade crossing; she died the same day. On October 15, 1973, her father, appellee here, filed a petition with the Erie County Register of Wills, requesting that he be appointed administrator of his daughter's estate. On January 29, 1974, he paid the filing fee for the issuance of the letters of administration. However, the letters were not issued because he had not posted bond when he filed the petition. It was therefore necessary for him to return to the office of the Register of Wills to post the bond.
Before returning, appellee instituted this suit as a survival action, alleging in the complaint that he was the administrator of his daughter's estate. The complaint was filed on February 1, 1974; on February 2, 1974, the statutory period of limitations expired. On February 21, 1974, appellee returned to the office of the Register of Wills, posted the bond, and letters were issued.
The railroad, appellant here, pleaded the statute of limitations in its answer to the complaint and new matter, and again in its motion for summary judgment. When the motion was denied, the lower court certified its order to this court as involving "a controlling question of law as to which there is substantial ground for difference of opinion" the resolution of which "may materially advance the ultimate termination of the matter." See Act of July 31, 1970, P.L. 673, No. 223, art. V, § 501, 17 P.S. § 211.501.
Appellant argues -- and appellee does not dispute -- that a decedent's estate cannot be a party to litigation unless a personal representative exists. Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1973); Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). The question is whether a doctrine of "relation back" may be applied, so that the action of appellee in
[ 253 Pa. Super. Page 534]
instituting this suit within the limitation period but prior to his appointment may be validated by ...