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ANTHONY MARZELLA AND ALVERA MARZELLA v. FLORENTINE KING AND ESTATE GEORGE KING (07/12/78)

decided: July 12, 1978.

ANTHONY MARZELLA AND ALVERA MARZELLA, HIS WIFE, APPELLANTS,
v.
FLORENTINE KING AND THE ESTATE OF GEORGE KING, APPELLEES



No. 917 October Term, 1977, Appeal from the Order of the Court of Common Pleas of the 59th Judicial District of Pennsylvania, Elk County Branch, Civil Division at No. 76-886, dated January 14, 1977.

COUNSEL

Paul J. Quattrone, Ridgway, for appellants.

Gerald R. Sorg and Anthony B. Trambley, St. Marys, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, and Cercone and Van der Voort, JJ., join in this opinion. Hoffman, J., concurs in the result. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Price

[ 256 Pa. Super. Page 180]

This is an appeal from the lower court's order granting appellees' motions to dismiss and denying appellants leave to amend their complaint, after the running of the statute of limitations, to name the administrator of an estate as a party. For the reasons stated herein, we affirm.

[ 256 Pa. Super. Page 181]

Our reading of the record discloses the following pertinent facts. On December 22, 1973, Anthony Marzella fell and was injured when he attempted to make a delivery at the George King residence. On December 19, 1975, only days before the applicable statute of limitations would have run,*fn1 appellants filed a praecipe for a writ of summons in trespass. Also on that date, letters of administration were issued to David A. Whitney as administrator of the estate of George King. Appellants' praecipe, naming Florentine King and the estate of George King as defendants, clearly evidences appellants' knowledge of Mr. King's death. Still, appellants made no effort to revise the praecipe to designate the administrator as a party. On September 21, 1976, a complaint was filed that also named Mrs. King and the estate as defendants. On October 29, 1976, Mrs. King and Mr. Whitney filed preliminary objections to the complaint. Appellees asserted, inter alia, that motions to dismiss should be granted because of the complaint's lack of conformity to the law in (1) failing to name the estate's administrator as a defendant, and (2) failing to join a necessary party. Thus alerted, on November 18, 1976, appellants filed a petition requesting permission to amend the caption to include Whitney as administrator.

It is well settled that all actions that survive a decedent must be brought by or against the personal representative. McGuire v. Erie Lackawanna Railway Co., 253 Pa. Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973); 20 Pa.C.S. ยง 3373. Further, 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 (1970); Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). Our research has uncovered numerous cases in which an action had been commenced against a decedent and efforts were subsequently undertaken, after the running of the statute of limitations, to substitute the administrator of the decedent's estate as the

[ 256 Pa. Super. Page 182]

    proper party. E. g., Ehrhardt v. Costello, supra; Thompson v. Peck, supra. For example, in Thompson v. Peck, supra, although Peck died on December 3, 1933, he was the named defendant in an action filed on September 20, 1934. On December 22, 1934, Thompson petitioned for leave to amend the caption to name Peck's executors as the proper parties. The petition was granted and on appeal the supreme court reversed, stating:

"It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action [citations omitted], and any such attempted proceeding is completely void and of no effect [citation omitted]. This disposes of the further argument that the defect was cured by the amendment. There can be no amendment where there is nothing to amend. In any event, an amendment the effect of which is to bring in new parties after the running of the statute of limitations will not be permitted [citations omitted]. No proceedings were taken against defendants until after the expiration of the year provided for by the statute; it follows that the action is barred." 320 Pa. at 30, 181 A. at 598 (emphasis added).

Lovejoy v. Georgeff, supra, is a case similar to the instant one. There the plaintiff did not name the decedent as the defendant, but rather made some effort to identify the decedent's estate. We found that where a trespass action was commenced within the statute of limitations against an individual as administrator of an estate, the actual issuance of letters to the named individual after the statute had run would not be held to relate back to the time when the praecipe for the writ's issuance was entered. ...


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