#### Munday v. Underwriters Services Inc.

*Michael J. McElligott,*for plaintiffs.

*John W. Jordan IV,*for defendants.

*Brian S. Kane,*for additional defendant.

August 30, 1995

WETTICK, *J.,*

Defendants and additional defendant contend that this action must be dismissed pursuant to 20 Pa.C.S. §3375 which reads in its entirety as follows:

> “If a plaintiff or petitioner in any action or proceeding now pending or hereafter brought dies and a personal representative is not appointed within one year after a suggestion of such death is filed in the action or proceeding, any defendant or respondent may petition the court to abate the action as to the cause of action of the decedent. Copies of the petition shall be served upon the executor named in the will, if known to the defendant, and otherwise upon all known next of kin entitled to letters of administration. The court shall abate the action as to the cause of action of the decedent *290if the delay in taking out letters is not reasonably explained.”

Plaintiff Eugene Munday died on June 15, 1993. Counsel for defendants were notified of his death on August 5, 1993. Underwriters Services filed a notice of suggestion of death on October 14, 1993. Plaintiffs placed the case at issue on September 26, 1994. Defendants filed and served their petition for a rule to show cause why the action should not be abated on December 29, 1994. Lillian Munday was appointed as executrix of the estate of Eugene Munday on January 10, 1995. The petition for rule to show cause why action should not be abated for failure to take out letters was presented to me on January 20, 1995. On the basis of the allegations within the petition that a personal representative had not been appointed within one year after the filing of a suggestion of death, I issued the rule. My court order provided for an answer to be filed within 20 days, for all factual disputes to be resolved pursuant to Pa.RX.P. nos. 206-209, for depositions to be completed within 40 days after the answer was filed, and for an argument before me on April 21, 1995 at 12 p.m.

Within 20 days, plaintiffs filed an answer and new matter in response to petition for rule to show cause why action should not be abated for failure to take out letters. Defendants filed a reply to the new matter. Defendants, however, elected not to take any depositions. Consequently, under Rule 209, the disputed factual allegations in the petition and answer are to be resolved in favor of plaintiffs.

Since section 3375 provides for the abatement of the action only where the delay is not reasonably explained, the first issue that I address is whether plaintiffs have offered a reasonable explanation for their failure *291to take out letters within one year after the filing of the suggestion of death. The facts that I previously recited in the second paragraph of this opinion are not disputed. Additional facts set forth in plaintiffs’ answer and new matter are that Eugene Munday’s death was not related to injuries received from the automobile accident that is the basis of the breach of contract claim raised in this litigation, that all property owned by Mr. Munday was jointly held with his wife Lillian Munday, that there was no need to raise an estate on Mr. Munday’s behalf for inheritance tax purposes because the parties’ property was jointly held, and that defendants have not been prejudiced by plaintiffs’ actions.

These facts do not constitute a reasonable explanation for the delay. I accept plaintiffs’ statement that the parties’ property was in joint name and that there was no need for inheritance tax purposes for a personal representative to be appointed. However, this lawsuit does not raise joint damage claims. Mr. Munday raises claims that are separate and independent from the claims of Ms. Munday. Mr. Munday’s claims cannot be tried until a personal representative has been appointed. *Marzella*v. *King, 256*Pa. Super. 179, 181, 389 A.2d 659, 660-61 (1978).

In their brief, plaintiffs state that they continually pursued their claims in a prompt and timely manner following Mr. Munday’s death. They placed the case at issue and the parties are now waiting for the case to appear on a trial list. The case would not have moved more promptly if letters had been taken out. The parties, according to plaintiffs, were waiting for the court to list the case for trial and plaintiffs similarly were waiting before engaging the wheels of the probate and inheritance tax processes. Judicial efficiency and economy were served by plaintiffs’ continually monitoring the *292trial list in anticipation of final adjudication of this matter and by waiting to take out letters until the case was listed for trial. However, since defendants filed a suggestion of death, plaintiffs’ explanation that they decided to wait to take out letters until the case had been scheduled for trial is not reasonable.

In their brief, plaintiffs say that they had disclosed their intention to defendants to “take steps toward probate when that end was in sight” and that defendants voiced no concern over this course of action. However, plaintiffs’ answer and new matter does not contain such an allegation and plaintiffs did not submit any depositions that offer this explanation. Furthermore, the filing of a notice of suggestion of death shows that defendants intended to utilize section 3375 if plaintiffs did not take out letters.

While the delay has not been reasonably explained, plaintiffs correctly assert that defendants have not been prejudiced from plaintiffs’ failure to take out letters within one year after defendants filed a suggestion of death.1 Ms. Munday was appointed as executrix of the *293estate within two weeks after defendants filed their petition requesting that the action be abated for failure to take out letters. The case is as ready to be tried as it would have been if letters had been taken out within the one-year period provided for in 20 Pa.C.S. §3375.

I now consider whether I must grant defendants’ petition to abate the action where defendants have not experienced any prejudice from plaintiffs’ failure to take out letters.2 The controlling language of the legislation provides that a court *“shall*abate the action as to the cause of action of the decedent *if the delay in taking out letters is not reasonably explained. ”*(emphasis added) While the word “shall” is ordinarily deemed mandatory, it may be read as only discretionary or permissive if this is most consistent with the legislative intent. *Grove North America*v. *Arrow Lift & Construction Equipment Co. Inc.,*421 Pa. Super. 12, 18, 617 A.2d 369, 372 (1992). In this case, the legislature uses the term “may” in the first sentence of section 3375 for the purpose of giving the petitioner the option to file a petition to abate the action and it uses the term “shall” in the second sentence which governs service and is clearly mandatory. It is unlikely that it used the same term “shall” one sentence later in a different fashion. Furthermore, since the legislature established a standard for not abating the action (was the delay reasonably explained), it is unlikely that the legislature intended to give the court additional discretion unrelated to this standard.

*294I next consider the contention that I should deny the petition to abate the action because the personal representative was appointed before I ruled on the petition. This is simply a variation of the argument that plaintiffs did not sustain any prejudice; under the language of section 3375, the controlling issue is whether plaintiffs offer a reasonable explanation for the delay. If I accept the argument that the petition to abate the action should not be granted if letters are taken out promptly after the plaintiff receives notice of the filing of the petition, I would be reading an important notice requirement (Pa.R.C.P. no. 237.1) into the statute. There is nothing in the language of the legislation suggesting that the respondent is entitled to a second chance. A similar situation has been addressed in the case law governing the filing of a petition for a judgment of non pros for inactivity of record pursuant to *Penn Piping Inc.*v. *Insurance Company of North America,*529 Pa. 350, 603 A.2d 1006 (1992). The case law holds that activity to move the case forward which the plaintiff takes after the filing of the petition cannot be used to defeat the petition. *Blackburn v. Sharlock, Repcheck, Engel and Mahler,*433 Pa. Super. 581, 641 A.2d 612 (1994).

For these reasons, I enter the following order of court:

ORDER

On August 30, 1995, it is hereby ordered that the petitions of Underwriters Services Inc., and The Pennsylvania Life and Health Insurance Guaranty Association requesting that the causes of action of Eugene Munday be abated is granted and these claims are dismissed.

1

. The absence of prejudice is not the same as the absence of a reasonable explanation. See the case law governing amendments to pleadings (Pa.R.C.P. no. 1033) which holds that prejudice to the opposing party rather than the absence of a reasonable excuse for the delay is the controlling standard *(Horowitz*v. *Universal Underwriters Insurance Co.,*397 Pa. Super. 473, 479-83, 580 A.2d 395, 398-400 (1990)); the case law governing the late joinder of additional defendants (Pa.R.C.P. no. 2253) which holds that the absence of prejudice is insufficient to obtain a late joinder and which requires the party seeking a late joinder to meet the requirement of a reasonable justification for the delay *(NPW Medical Center of N.E. Penna. Inc.*v. *LS Design Group, P.C.,*353 Pa. Super. 341, 509 A.2d 1306 (1986)); and the case law governing the entry of a judgment of non pros which requires the party seeking the non pros to establish both the *293absence of a compelling reason for the delay and prejudice *(James Brothers Lumber Co.*v. *Union Banking and Trust Co.,*432 Pa. 129, 132, 247 A.2d 587, 589 (1968)).

2

. The parties have advised me that there is no appellate case law addressing this issue.