Appeal from the Order February 14, 2013 In the Court of Common Pleas of Philadelphia County Civil Division No(s).: March Term, 2012 No. 3943.
BEFORE: BOWES, PANELLA, and FITZGERALD, [*] JJ.
Appellant, Keith McClean, appeals from the order entered in the Philadelphia County Court of Common Pleas denying his motion for leave to amend his negligence complaint to substitute the defendant's estate, where the defendant had died prior to commencement of the suit and the statute of limitations had run. We affirm, and hold that 20 Pa.C.S. § 3383, which extends the filing period when a defendant is deceased, applies to the initial filing of a complaint, not a motion to amend complaint.
On April 6, 2010, Appellant allegedly slipped and fell on the sidewalk in front of the property at 2028 Spruce Street in Philadelphia. The record owner of the property was Isaac Djerassi ("Defendant"). Unbeknownst to Appellant, Defendant subsequently died on November 11, 2011. Thereafter, on March 29, 2012, Appellant filed the underlying negligence suit against Defendant.
We recount the ensuing tangled, yet relatively short, procedural history in detail. On April 9, 2012, Appellant attempted service of the complaint on Defendant but failed. An affidavit of non-service was filed on April 19th; it stated in pertinent part:
I hereby certify and return that on 04/09/2012 at 7:05 PM, I completed due and diligent attempts to serve [Defendant, address]. I therefore return this Complaint without service upon [Defendant]. Diligent attempts were made per the following notations:
Mr. Ortdlaf on 1st floor stated that the above is deceased.
Affidavit of Non-Service (emphasis in original).
While neither the record nor Appellant's brief indicate when Appellant learned that Defendant had died, he filed, on December 11, 2012, a motion for leave to amend complaint, to substitute Defendant's estate as the defendant. On January 2, 2013, the co-executors of Defendant's estate, Ady Lynn Djerassi and Ram Isaac Djerassi (collectively, "the Estate"), filed a motion to intervene. On January 9th, the Honorable Leon Tucker granted Appellant's motion to amend.
On January 21, 2013, Appellant filed an amended complaint, substituting the Estate as the defendant, and filed an answer opposing the Estate's motion to intervene. On January 24th, the Estate filed preliminary objections to the amended complaint, arguing the original complaint was a nullity because it was filed against a dead person. Judge Tucker then vacated his January 9th order granting the motion to amend, but did not issue a new ruling.
This case was then transferred to the Honorable Idee C. Fox. On February 6, 2012, Judge Fox struck Appellant's amended complaint and granted the Estate's motion to intervene. On February 14th, Judge Fox denied Appellant's motion to amend, which had been rendered unresolved by Judge Tucker's order merely vacating his prior order granting amendment.
Meanwhile, the Estate's preliminary objections were assigned to the Honorable Ellen Ceisler. On February 21, 2013, she entered the underlying order sustaining the Estate's preliminary objections and dismissing Appellant's amended complaint with prejudice. Appellant took this appeal. The trial court issued two opinions: the first by Judge Ceisler and the second by Judge Fox. Both opinions set forth the same rationale: that Appellant's original complaint was void because the sole defendant was a dead person, the defective complaint could not be cured by amendment, the correct procedure for Appellant was to file a new complaint—which he did not do, and nevertheless Appellant's motion for leave to amend complaint was filed after the statute of limitations had run.
Preliminarily, we consider both trial court opinions' statements concerning the propriety of this appeal. Both Judge Ceisler and Judge Fox reason that because the February 6, 2013 order struck Appellant's amended complaint, the Estate's preliminary objections thereto were moot, and thus the underlying February 21st order sustaining the preliminary objections is likewise moot or void. Trial Ct. Op., 4/15/13, at 4; Trial Ct. Op., ...