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GARY FINN v. HARRY J. DUGAN AND JOHN WALTON (11/22/78)

decided: November 22, 1978.

GARY FINN, APPELLEE,
v.
HARRY J. DUGAN AND JOHN WALTON, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN D. WALTON, JR., DECEASED. APPEAL OF JOHN WALTON



No. 160 October Term, 1978, On Appeal from Order of the Court of Common Pleas of Montgomery County, No. 75-7932 dated September 8, 1977.

COUNSEL

Richard R. High, Philadelphia, with him Robert C. Steiger, Southampton, for appellant.

Perry Stanton Block, Philadelphia, with him Frederick R. Herman, Philadelphia, for appellee, Finn.

No appearance entered nor brief submitted for appellee, Dugan.

Price, Hester and Hoffman, JJ.

Author: Hester

[ 260 Pa. Super. Page 368]

This is an appeal from an Order of the Common Pleas Court of Montgomery County denying appellants Motion for summary judgment.*fn1

Appellant is the father of John Walton, Jr. On November 18, 1973, a car driven by John Walton, Jr. collided with a car driven by Harry Dugan. John Walton, Jr., was killed instantly and appellee, a passenger in the Walton car, was severely injured.

[ 260 Pa. Super. Page 369]

On May 23, 1975, appellee instituted an action in trespass via complaint against John Walton as personal representative of the Estate of John Walton, Jr. and Harry Dugan. Appellant (John Walton) filed an answer on December 22, 1975 wherein he denied that "John Walton is the personal representative of the Estate of John Walton, Jr., deceased". Appellant also filed a Motion for summary judgment at the same time, attaching affidavits, asserting again that he was not the personal representative of his son's estate and also asserting that the statute of limitation had run. The court denied summary judgment and this appeal followed.

Appellant asserts that since appellee did not sue the proper party within the two year statute of limitations the Motion for summary judgment should have been granted.

There is no dispute that appellant is not now and never was the personal representative of his son's estate and that there, in fact, is no personal representative of the Estate of John Walton, Jr., deceased. There is also no dispute that the statute of limitations ran as of November 18, 1975.

The law is clear that all actions that survive a decedent must be brought by or against a personal representative, duly appointed by the Register of Wills. Lovejoy v. ...


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