No. 384 Pittsburgh, 1980, No. 385 Pittsburgh, 1980, Appeal from Order of the Court of Common Pleas Civil Action - Law, of Westmoreland County, Nos. 3066 and 11379 of 1979.
Anthony J. Martin, Monroeville, for appellant.
Michael L. Magulick, Pittsburgh, for appellees.
Hester, Brosky and Van der Voort, JJ.
[ 289 Pa. Super. Page 20]
This is an appeal from an order of the Court of Common Pleas of Westmoreland County sustaining appellees' Preliminary Objections. The procedural history and facts relevant to the issue on appeal are as follows:
On April 2, 1977, appellant was a passenger in an automobile owned by appellee Bradford C. Estep and operated by his daughter Joanna K. Estep. A Complaint in Trespass was filed on March 30, 1979 at No. 3066 of 1979. Appellant alleges that Miss Estep, acting as a servant/agent, or employee of appellee Bradford C. Estep, operated the vehicle negligently resulting in personal injuries to appellant.
Unknown to appellant, Joanna K. Estep had died on March 23, 1979. On June 7, 1979, appellant filed a Suggestion of Death, and the Complaint was reinstated. Service was made on June 26, 1979 by the Sheriff of Westmoreland County. Preliminary Objections in the Nature of a Motion to Strike Service were filed on behalf of Joanna K. Estep on July 31, 1979. On September 17, 1979, appellant filed a Petition for Citation to apply for Letters, which citation was issued by the Register of Wills of Westmoreland County on September 24, 1979. Letters of Administration on the Estate of Joanna K. Estep were issued to appellee Bradford C. Estep on October 12, 1979.
[ 289 Pa. Super. Page 21]
On October 30, 1979, appellant instituted a second action in trespass against Bradford C. Estep, Administrator of the Estate of Joanna K. Estep, at No. 11379 of 1979. The actions at Nos. 3066 and 11379 were consolidated at No. 3066 on November 30, 1979. Appellees' Preliminary Objections were sustained on March 5, 1980, resulting in a dismissal with prejudice of both actions. This timely appeal followed.
Appellant contends the action filed at No. 11379 was filed in a timely fashion within one year of the date of death of Miss Estep.
We note that Joanna K. Estep was not served personally in the action at No. 3066 of 1979. She died prior to the time the complaint was filed. We agree with the trial court that the action filed against Joanna K. Estep at No. 3066 of 1979 is void. In Marzella v. King, 256 Pa. Super. 179, 182, 389 A.2d 659 at 660 (1978) citing Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935), we held:
"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 ...