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THERESA D'ORAZIO v. LOCUST LAKE VILLAGE (06/15/79)

decided: June 15, 1979.

THERESA D'ORAZIO, ADMINISTRATRIX OF THE ESTATE OF PATRICK L. LAWLER, DECEASED, APPELLANT,
v.
LOCUST LAKE VILLAGE, INC. AND LOCUST LAKE VILLAGE PROPERTY OWNERS ASSOCIATION, INC.



No. 1170 October Term, 1978, Appeal from the Judgment of the Court of Common Pleas of Monroe County, Civil Action, Law at No. 183 June Term, 1974.

COUNSEL

Paul Mark Perlstein, Philadelphia, for appellant.

Bernard M. Billick, Stroudsburg, for appellee Locust Lake Village, Inc.

Donald H. Brobst, Wilkes-Barre, for appellee Locust Lake Village Property Owners Ass'n, Inc.

Price, Hester and Hoffman, JJ.

Author: Price

[ 267 Pa. Super. Page 126]

The court below granted summary judgment on the survival action initiated by appellant when it concluded that the applicable two-year statute of limitations had expired prior to appellant's obtaining required letters of administration. For the reasons set forth herein, we reverse the order and remand the case for further proceedings.

The salient facts as found by the court below are these. Patrick L. Lawler, age nine, drowned on July 8, 1973, while swimming in Twin Lakes, Monroe County. The swimming area is allegedly owned and controlled by appellees. On July 10, 1974, Patrick's mother, Theresa D'Orazio, filed a petition for letters of administration with the Delaware County Register of Wills. A bond of $1,000 was required, and on August 14, 1974, it was ordered of the Fidelity and Deposit Company of Maryland. Because Ms. D'Orazio failed to execute the bond, no letters were then issued. Appellant's counsel was alerted to this in December 1976, and subsequently, on January 11, 1977, Ms. D'Orazio signed the bond; letters of administration were then issued. Counsel paid bond premiums in 1974, 1975, and 1976, and therefore assumed that letters had in fact been granted.

On June 11, 1974, a writ of summons was issued naming "Theresa D'Orazio, Trustee, ad litem," plaintiff in a wrongful death and survival action. The complaint, filed on October 24, 1974, named "Theresa D'Orazio, Administratrix of the Estate of Patrick L. Lawler, Deceased," as plaintiff. No formal consent or approval was sought to alter the caption.*fn1

[ 267 Pa. Super. Page 127]

Appellees filed a motion for summary judgment on the survival action, arguing that such an action could be commenced only by the personal representative of a decedent's estate, and that the two-year statute of limitations precluded the action since letters were not acquired until January 11, 1977. The court below refused to find that the letters issued in January 1977, related back to July 10, 1974, the time of the action's commencement.

We find that this case is controlled by McGuire v. Erie Lackawanna Railway Co., 253 Pa. Super. 531, 385 A.2d 466 (1978). In McGuire, the father of a high school student, killed at a railroad crossing, filed a petition for letters approximately one and one-half years after the accident. He also paid the filing fee for the issuance of letters; but he failed to post bond. Subsequent to that, but within two years of the accident, he initiated a survival action against the railway. Approximately twenty days after the statute ran, the father returned to the register of wills office and posted the necessary bond; letters were issued. We found that the running of the statute of limitations did not bar the suit.

We recognized in McGuire the long-standing rule that all actions that survive a decedent must be initiated by or against the personal representative. See also, Finn v. Dugan, 260 Pa. Super. 367, 394 A.2d 595 (1978); Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973); Act of June 30, 1972, P.L. 508, No. 164, § 2 (20 Pa.C.S. § 3373). The question here, as in McGuire, is whether the doctrine of ...


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