SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2143-20

DAMARIS CHANDLER,

as administrator ad prosequendum 

of the estate of JOSEPH E.

CHANDLER, JR., deceased,

Plaintiff-Respondent,

v.

TODD W. KASPER, 

Defendant-Appellant,

and

THOMAS C. KASPER,

Defendant,

and

KAZZ, INC., d/b/a KASPER'S

CORNER and KASPER

AUTOMOTIVE,

Defendants-Respondents.

_____________________________

Argued September 13, 2021 – Decided October 7, 2021

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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A-2143-20

Before Judges Sabatino and Rothstadt.

On appeal from an interlocutory order of the Superior 

Court of New Jersey, Law Division, Camden County, 

Docket No. L-4710-18.

Neal A. Thakkar argued the cause for appellant 

(Sweeney & Sheehan, PC, attorneys; Frank Gattuso and 

Jacqueline M. DiColo, on the briefs).

Robert Douglas Kuttner argued the cause for 

respondent Damaris Chandler.

Mark R. Sander argued the cause for respondent Kazz,

Inc. (Thomas, Thomas & Hafer, LLP, attorneys; Mark 

R. Sander, of counsel and on the brief).

PER CURIAM

In this wrongful death, N.J.S.A. 2A:31-1 to -6, and Survivor's Act, 

N.J.S.A. 2A:15-3, action, we granted defendants Todd W. Kasper, Kazz, Inc. 

d/b/a Kasper's Corner, and Kasper Automotive, leave to appeal from two 

January 22, 2021 orders entered by the Law Division, denying defendants' 

motion for partial summary judgment, and permitting plaintiff to amend her 

previously filed complaint to correct her standing by designating herself both as 

Administrator Ad Prosequendum and the General Administrator of her deceased 

father's estate. According to defendants' arguments before the motion judge and 

now on appeal, plaintiff could not have standing to bring the Survivor's Act 
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action because no estate existed at the time she filed her complaint. And, by the 

time letters of administration were issued to plaintiff and she sought to amend 

her complaint, the statute of limitations for the Survivor's Act action ran years 

before. The motion judge acknowledged the deficiency in plaintiff's initial 

standing but still denied defendants' motion to dismiss as a matter of equity. We 

reverse that determination and remand for entry of orders dismissing plaintiff's 

Survivor's Act action for lack of standing because plaintiff's original complaint 

was a nullity and any amendment sought after the statute of limitations ran could 

not relate back to that complaint.

The undisputed facts giving rise to the complaint in this action are taken 

from the motion record and summarized as follows. The decedent, Joseph E. 

Chandler, was struck by an automobile while crossing a street on December 21, 

2016. The vehicle that struck the decedent was driven by defendant Todd W. 

Kasper and owned by defendant Thomas C. Kasper. As a result of being struck 

by that vehicle, the decedent suffered significant injuries and passed away six 

days later.

Just prior to the statute of limitations running as to the decedent's and his 

heirs' claims, on December 18, 2018, the decedent's daughter, plaintiff Damaris 

Chandler, filed a two-count complaint as Administrator Ad Prosequendum of 
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her father's estate. The complaint alleged that the decedent died on December 

27, 2016, intestate and that plaintiff had been appointed as Administrator Ad 

Prosequendum prior to the filing of the complaint. The first count asserted a 

claim under the Survivor's Act for the personal injuries and pain and suffering 

the decedent experienced prior to his death. The second count asserted a 

wrongful death action, which claimed that the decedent's daughters, plaintiff and 

India Ruhlman, his son Kerri Chandler, and his other "survivors and next of kin" 

were entitled to damages. In response, defendants filed answers to the 

complaint. Defendants Todd and Thomas Kasper's answer asserted as a separate 

defense that plaintiff's claims were statutorily barred by both the wrongful death 

statute and by the Survivor's Act. Thereafter the parties engaged in discovery. 

At no time prior to the filing of the subject summary judgment motions did 

defendants otherwise assert that plaintiff lacked standing to bring the Survivor's

Act action. 

Thereafter, in November 2020, defendants filed a motion for summary 

judgment seeking dismissal of the Survivor's Act action because plaintiff lacked 

standing to bring that claim as letters of general administration had never been 

issued to her. Plaintiff filed opposition to the motion and a cross-motion to file 
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a second amendment complaint to reflect that on December 8, 2020, plaintiff 

obtained letters of general administration. 

In a certification filed in support of her cross-motion and in opposition to 

defendants' motion, plaintiff explained that there was a delay in her being able 

to seek appointment as both Administrator Ad Prosequendum and as General 

Administrator of her father's estate due to disagreements between her and her 

siblings. Moreover, she understood from discussions with representatives of the 

county surrogate's office that because there were no assets in the estate, it was 

only necessary for her to be appointed as Administrator Ad Prosequendum to 

file the lawsuit and later be appointed as General Administrator to distribute any 

recovery. According to plaintiff, only when the estate had assets would she need 

to be appointed as general administrator, which she began to pursue only when 

defendants "made a small offer in mediation" to settle this case in August 2020. 

However, it took additional time to persuade her siblings to agree to her 

appointment. 

After further submissions, the motion judge considered the parties' oral 

arguments on January 22, 2021. Afterward, the motion judge denied defendants'

motion and granted plaintiff's cross-motion, placing his reasons on the record

that same day. In his oral decision, the motion judge discussed the case law 
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relied on by the parties and raised by the judge, before concluding that plaintiff 

acted diligently and "provided [defendants] timely notice of the [Survivor's Act] 

claim by the initial complaint and . . . perhaps there's a defect in the standing 

of . . . plaintiff, but [she] was seeking to proceed diligently. [And,] New Jersey 

Law holds that it would be inequitable to deny [a] party their day in court 

because of ignorance."

The judge also determined that "[a] deceased party['s] claim[] can only 

proceed through either [A]dministration [A]d [Proseqeundum] or through an

estate being raised." He stated that defendants' argument as to standing was at 

best a "technical argument" and that "[s]tatute of limitations defenses are not 

permitted where mechanical application would inflict an obvious and 

unnecessary harm on . . . the party who holds the claim without advancing the 

legitimate purpose." And, according to the judge "[t]o deny a relation back . . . 

serves no legitimate purpose." The judge also relied on the fact that the parties 

participated in an arbitration and in discovery for years without defendants 

raising any issues as to standing. However, the judge found that "because 

standing's a threshold issue [that is] very similar to jurisdiction, it cannot be 

waived." Nevertheless, a defect in standing did not "mandate [] . . . the sanction 

of dismissal."
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The judge also found support in the fact that plaintiff had difficulty in 

pursuing the issuance of letters of general administration because of 

disagreements between her and her siblings. He found that the siblings only 

agreed to renounce their rights to being named Administrator Ad Prosequendum 

immediately before the filing of the complaint, but "they wouldn't permit full 

representation of the estate by [plaintiff.]" Moreover, plaintiff relied on 

information she received from the surrogate's office that seemed to indicate that 

she could initially pursue the action as Administrator Ad Prosequendum and 

later could seek letters of administration that would allow for distribution of any 

funds that may be recovered in the action. It was not until December of 2020 

that plaintiff's siblings renounced and allowed her to proceed to seek letters of 

administration. Therefore, the judge concluded that he should "permit the cure 

of the standing issue" by allowing the amendment of the complaint to relate back 

to remedy any issue as to standing. This appeal followed. 

On appeal, defendants challenged the judge's legal conclusion that despite 

the running of the statute of limitations plaintiff should be allowed to amend the 

complaint to relate back to its initial filing. "Because the question presented, 

whether decedent's estate could avoid the running of the statute of limitations 

by having its amended complaint relate back to the complaint filed in [plaintiff's] 
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name [as Administrator Ad Prosequendum years after the running of the statute 

of limitations] is solely a question of law, our review is de novo." Repko v. Our 

Lady of Lourdes Med. Ctr. Inc., 464 N.J. Super. 570, 574 (App. Div. 2020). 

In Repko, the plaintiff's attorney had filed a complaint in the name of his 

deceased client without knowing she was dead. When he learned of her passing, 

he sought to amend the complaint to substitute the client's estate and to add a 

claim under the Survivor's Act, but did so three years after the cause of action 

arose and after the statute of limitations had run. In our opinion, we reversed 

the denial of defendant's motion to dismiss the complaint as barred by the statute 

of limitations and remanded for the entry of an order dismissing the complaint 

with prejudice. Id. at 578. There, we observed that the original complaint was 

a "nullity" because a deceased person cannot be a plaintiff. Id. at 575. We 

concluded there was nothing for an amendment of the complaint to relate back 

to, which warranted dismissal of the Survivor's Act claim. Id. at 573.

In the present action, the motion judge and plaintiff on appeal rejected 

defendants' argument that our holding in Repko was applicable to this case. We 

disagree.

At the outset, we note the important distinction between a wrongful death 

action and a Survivor's Act action; the former belonging to the individual 
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survivors of the decedent and the later belonging only to the decedent's estate. 

"[T]he Survivor's Act preserves to the decedent's estate any personal cause of 

action that decedent would have had if he or she would have survived." Smith 

v. Whitaker, 160 N.J. 221, 233 (1999). The Survivor's Act permits only an 

"executor, suing on behalf of [an] estate, to recover the damages [the] testator 

would have had if [the testator] was living." Repko, 464 N.J. Super. at 577 

(quoting Smith, 160 N.J. at 233). On the other hand, a wrongful death action 

must "be brought in the name of an [A]dministrator [A]d [P]rosequendum of the 

decedent for whose death damages are sought," or by an executor where the 

decedent's will has been probated, N.J.S.A. 2A:31-2, and any recovery belongs 

to the decedent's heirs. See N.J.S.A. 2A:31-4. 

As explained by Judge Milton A. Feller many years ago in Kern v. Kogan, 

93 N.J. Super. 459 (Law Div. 1967), there is a significant difference between 

the two actions:

The death statute gives to the personal representatives 

a cause of action beyond that which the deceased would 

have had if he had survived, and based upon a different 

principle, a new right of action. The recovery goes, not 

to the estate of the deceased person, but to certain 

designated persons or next of kin. In the recovery the 

executor or administrator as such has no interest; the 

fund is not liable to the debts of the deceased, nor is it 

subject to disposition by will, for the reason that the 

primary concern of the [A]ct . . . is to provide for those 
10 A-2143-20

who may have been the dependents of the 

deceased. . . .

[The Survivor's Act] contemplates compensation to the 

deceased person's estate. It is in the interval between 

injury and death only that loss can accrue to the estate, 

and in that alone is the personal representative 

interested. . . . The damages for personal injury and the 

expense of care, nursing, medical attendance, hospital 

and other proper charges incident to an injury as well 

as the loss of earnings in the life of the deceased are the 

loss to his estate and not to [his widow or next of kin].

[Id. at 471-72 (citation omitted).]

"Under these acts, the [A]dministrator Ad [P]rosequendum is the proper 

party to bring a lawful death action and a [G]eneral [A]dministrator is the proper 

party to institute a survival action." Id. at 473.

Notably the Survivor's Act includes a provision "to toll any statute of 

limitations on a claim belonging to a decedent for up to six months following 

death for the 'salutary purpose of providing executors and administrators with a 

limited period of time after death to evaluate potential claims available to the 

estate.'" Repko, 464 N.J. Super. at 577 (quoting Warren v. Muenzen, 448 N.J. 

Super. 52, 67-68 (App. Div. 2016) (citing N.J.S.A. 2A:14-23.1)).

Applying these well settled principals to the facts in the matter before us, 

we must reverse the motion judge's determination that the complaint in this 

matter could have been amended to correct what was obviously plaintiff's lack 
11 A-2143-20

of standing to bring the Survivor's Action in her capacity as Administrator Ad 

Prosequendum. Her reasons for not pursuing letters of general administration 

are of no moment. Like the complaint filed on behalf of the deceased plaintiff 

in Repko, here, the filing of the complaint prior to the establishment of an estate 

was a "nullity." Id. at 573. Any delay caused by a dispute among the heirs or 

siblings could have been avoided with the filing of an appropriate probate action 

long before the statute of limitations expired for the filing of the Survivor's Act 

claim, which as noted provides for a tolling of that time period to allow for such 

arrangements to be made or issues to be addressed.

As we noted in Repko, the "issue . . . of standing [is] succinctly 

defined . . . as 'the legal right to set judicial machinery in motion,'" id. at 574

(quoting Eder Bros. v. Wine Merchs. of Conn., Inc., 880 A.2d 138, 143 (Conn. 

2005)). Here, plaintiff did not have that legal right as to the Survivor's Act 

action at the time the complaint was filed and did not acquire it until after the 

statute of limitations had run on the estate's claim under that act. Regardless of 

the fact that defendants had notice of the claim through service of the original 

complaint, that pleading remained a nullity and could not have been asserted 

once the statute of limitations had run. Although we appreciate the motion 
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judge's endeavor to attain an equitable result, the governing law simply does not 

authorize it. 

Reversed and remanded for entry of an order dismissing the Survivor's

Act action count of the complaint.