Appeal from Order of the Court of Common Pleas, Civil Division, of Philadelphia County, No. 2311 Nov. Term, 1986.
John W. Craynock, Philadelphia, for appellant.
Carl Vaccaro, Philadelphia, for Dellarciprete, Laffey, Spigarelli and Com., appellees.
Rowley, Wieand and Montemuro, JJ.
[ 375 Pa. Super. Page 494]
On December 7, 1984, Jesus Valentin was shot and killed by Hiram Cartagena, a Pennsylvania State Police Officer. On November 13, 1986, Carmen Valentin, as administrator of her son's estate and in her own right, commenced an action for wrongful death and the alleged violation of her
[ 375 Pa. Super. Page 495]
son's civil rights. One of the defendants named in the action was Cyril Laffey, a former acting Commissioner of the Pennsylvania State Police. When service of the complaint was attempted upon Laffey, it was discovered that he was deceased, having died on November 30, 1984, seven days before plaintiff's decedent was shot. Thereafter, on December 3, 1986, plaintiff filed with the prothonotary a document labelled "Suggestion of Death and Substitution of Personal Representative." This document, with a copy of the complaint attached, was served upon Mary Ann Laffey, the widow of Cyril Laffey and the personal representative of his estate, on December 29, 1986. Mrs. Laffey filed preliminary objections alleging an improper substitution of a party defendant and lack of jurisdiction because of defective service. The trial court sustained the preliminary objections, struck the attempted substitution of Mrs. Laffey as a defendant, quashed the service, and struck Cyril Laffey as a defendant. This appeal followed.
Because Cyril Laffey had died before the lawsuit against him was commenced, the suit against him was a nullity. "A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect." Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597, 598 (1935) (citations omitted). See also: Longo v. Estep, 289 Pa. Super. 19, 21, 432 A.2d 1029, 1030 (1981). Therefore, the court properly struck Laffey as a party defendant. Moreover, because a dead person cannot be a party to an action commenced after his death, substitution of a personal representative of the dead person's estate is improper. Erhardt v. Costello, 437 Pa. 556, 560-561, 264 A.2d 620, 622-623 (1970). It follows that plaintiff's attempt to substitute as a party the personal representative of Laffey's estate was also invalid and of no effect. Cyril Laffey had never been a party to the action; and, therefore, there was no party defendant for whom Mrs. Laffey, as personal representative, could be substituted.
Because plaintiff's original action against Laffey was a nullity and because the attempted substitution of Mrs.
[ 375 Pa. Super. Page 496]
Laffey was improper, plaintiff's only remaining recourse was to file a new action against Mrs. Laffey in her capacity as personal representative of her late husband's estate. See: 8 Goodrich Amram § 2352(b):4. This the plaintiff failed to do. Rule 1007 of the Rules of Civil Procedure provides that "[a]n action may be commenced by filing with the prothonotary (1) a praecipe for a writ of summons, (2) a complaint, or (3) an agreement for an amicable action." Pa.R.C.P. 1007. Plaintiff concedes that Rule 1007 was not followed in the instant case. She argues, however, that this fact should be overlooked because the "Suggestion of Death" was filed prior to the running of the statute of limitations and a copy of the complaint was served upon Mrs. Laffey within 30 days thereof. We cannot accept this argument.
A suggestion of death is not a writ of summons or a complaint. Nor is it an agreement for an amicable action. Therefore, it is an inadequate means by which to "commence" an action against a new party. The Rules of Civil Procedure simply do not permit the commencement of an action by filing a "Suggestion of Death." Cf. Hartmann v. Peterson, 438 Pa. ...