J-S65042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMBER VINCIGUERRA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

GEORGE TUNSTALL,

Appellee No. 403 WDA 2016

Appeal from the Order February 17, 2016

in the Court of Common Pleas of Allegheny County

Civil Division at No.: GD-12-019371

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED: September 23, 2016

Appellant, Amber Vinciguerra, appeals from the order of February 17, 

2016, which dismissed her tort action against Appellee, George Tunstall. On 

appeal, Appellant argues that the trial court erred in concluding that her 

lawsuit was a legal nullity because Appellee died prior to its filing, and that 

the statute of limitations barred her claims. For the reasons discussed 

below, we affirm.

We take the underlying facts and procedural history in this matter 

from the trial court’s February 17, 2016 opinion and our independent review 

of the certified record. On October 15, 2010, a vehicle driven by Appellee 

struck Appellant’s automobile. (See Trial Court Opinion, 2/17/16, at 1). 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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Nationwide Mutual Insurance Company (Nationwide) insured Appellee’s car 

under an automobile insurance policy. (See id.). In November 2010, 

Appellant, through counsel, and Nationwide entered into communication 

regarding the incident. (See Praecipe for Writ of Summons, 10/12/12; see 

also Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at 

unnumbered page 1). On February 6, 2012, Appellee died. (See Trial Ct. 

Op., at 1).

Appellant instituted the instant action, by way of a writ of summons on 

October 12, 2012, three days prior to the expiration of the statute of 

limitations. (See Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, 

at unnumbered page 2). On October 16, 2012, the Allegheny County 

Sheriff’s Office notified Appellant that it was unable to effect service because 

Appellee was deceased. (See Appellant’s Response in Opposition to 

[Appellee’s] Motion to Dismiss, 7/02/15, at 3). Appellant has been unable to 

effect service and has never filed a complaint. 

On January 18, 2013, Appellant filed a petition for citation to direct 

that the heir(s) of George H. Tunstall open an estate, that a personal 

representative be appointed and that letters of administration be issued by 

the register of wills. (See id. at 3-4). Subsequently, the Orphans’ Court 

issued a citation directing Appellee’s wife to show cause as to why she 

should not be appointed administratrix of Appellee’s estate. (See id. at 

Exhibit B). It appears that no further action has occurred with respect to 
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that petition. (See Trial Ct. Op., at 2). On February 26, 2013, Appellant 

notified Nationwide that Appellee had died. (See Appellee’s Brief in Support 

of Motion to Dismiss, 8/26/15, at unnumbered page 2).

On May 29, 2015, Appellee’s counsel, filed a “motion to dismiss.” The 

trial court denied the motion on procedural grounds that same day. On June 

2, 2015, Appellee filed a suggestion of death. On June 16, 2015, Appellee 

filed a second “motion to dismiss,” arguing that the action was a legal nullity 

because Appellee had died before Appellant filed it and that the statute of 

limitations had expired. (See Motion to Dismiss, 6/16/15, at unnumbered 

page 2). On June 16, 2015, the trial court issued an order stating, in part, 

“the petition/motion shall be decided under Pa.R.C.P. 206.7[1]”. (Order of 

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1

Pennsylvania Rule of Civil Procedure 206.7, procedures after issuance of a 

rule to show cause, provides:

(a) If an answer is not filed, all averments of fact in the 

petition may be deemed admitted for the purposes of this 

subdivision and the court shall enter an appropriate order.

(b) If an answer is filed raising no disputed issues of 

material fact, the court on request of the petitioner shall decide 

the petition on the petition and answer.

(c) If an answer is filed raising disputed issues of material 

fact, the petitioner may take depositions on those issues, or such 

other discovery as the court allows, within the time set forth in 

the order of the court. If the petitioner does not do so, the 

petition shall be decided on petition and answer and all 

averments of fact responsive to the petition and properly 

pleaded in the answer shall be deemed admitted for the purpose 

of this subdivision.

(Footnote Continued Next Page)
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Court, 6/16/15, at unnumbered page 1). On July 2, 2015, Appellant filed a 

response arguing that Appellee was equitably estopped from raising a 

statute of limitations defense; that by attempting to secure the appointment 

of a personal representative Appellant acted in good faith; and, therefore, 

the action should not be dismissed. (See Appellant’s Response in Opposition 

to [Appellee’s] Motion to Dismiss, 7/02/15, at 5-11).

On February 17, 2016, the trial court granted the “motion to dismiss.” 

The instant, timely appeal followed. On March 23, 2016, the trial court 

ordered Appellant to file a concise statement of errors complained of on 

appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely Rule 1925(b) 

statement on April 12, 2016. See id. On May 4, 2016, the trial court issued 

an order adopting its February 17, 2016 opinion. See Pa.R.A.P. 1925(a).

On appeal, Appellant raises the following questions for our review:

1. Did the trial court abuse its discretion and/or commit legal 

error by dismissing Appellant’s case by way of Pa.R.C.P. 

206.7?

2. Did the trial court err by failing to correctly consider and/or 

apply the [d]octrine of [e]quitable [e]stoppel as it pertains to 

the tolling of the statute of limitations and decedent’s 

insurer’s duty to notify Appellant of decedent’s death?

(Footnote Continued) _______________________

(d) The respondent may take depositions, or such other 

discovery as the court allows.

Pa.R.C.P. 206.7.
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3. Did the trial court err when it failed to consider Appellant’s 

equity argument that the [p]etition for [c]itation tolled the 

statute of limitations and/or that the relation back doctrine 

should apply?

(Appellant’s Brief, at 5).

Appellant appeals from the trial court’s grant of Appellee’s “motion to 

dismiss.” Initially, we note that, in its motion, Appellee did not identify the 

rule of civil procedure that permits a “motion to dismiss.” (See Motion to 

Dismiss, 6/16/15, at unnumbered pages 1-2). Further, in its decision, the 

trial court did not specify a scope and standard of review. (See Trial Ct. 

Op., at 1-2). In a recent decision, when faced with the grant of a similarly 

non-specific “motion to dismiss,” which, like the motion in the instant 

matter, argued a statute of limitations defense, this Court treated the 

“motion to dismiss” as preliminary objections and reviewed the decision 

under that standard. See Rellick-Smith v. Rellick, — A.3d —, 2016 WL 

4435625, at *3 (Pa. Super. filed Aug. 22, 2016). We will do likewise.

Our scope and standard of review are well-settled.

In determining whether the [trial c]ourt properly granted the 

[Appellee’s] preliminary objections (i.e., the [m]otion to 

[d]ismiss), we review the ruling for an error of law or abuse of 

discretion. On appeal from an order sustaining preliminary 

objections, we accept as true all well-pleaded material facts set 

forth in the appellant’s [documentation] and all reasonable 

inferences which may be drawn from those facts. Preliminary 

objections seeking dismissal of a cause of action should be 

sustained only in cases in which it is clear and free from doubt 

that the pleader will be unable to prove facts legally sufficient to 

establish the right to relief; if any doubt exists, it should be 

resolved in favor of overruling the objections.
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Id. (citations and quotation marks omitted).

In her first issue, Appellant claims that because Pennsylvania law does 

not recognize a “motion to dismiss” in the context of civil litigation, the trial 

court erred in not treating it as either a motion for summary judgment or a 

motion for judgment on the pleadings. (Appellant’s Brief, at 16-17). 

Appellant further asserts that it was improper to dismiss the action now 

because she has not filed a complaint or been able to conduct proper 

discovery. (See id. at 17). However, Appellant has waived this claim.

Appellant did not raise this issue either in her response to Appellee’s 

motion to dismiss or in her reply brief to the motion to dismiss. (See 

Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss, 

7/02/15, at 5-11; [Appellant’s] Reply Brief in Opposition to [Appellee’s] Brief 

in Support to Motion to Dismiss, 9/17/15, at 2-8). We have consistently 

held that issues raised for the first time on appeal are waived. See Yenchi 

v. Ameriprise Fin., Inc., 123 A.3d 1071, 1081 (Pa. Super 2015), appeal 

granted, 134 A.3d 51 (Pa. 2016); see also Pa.R.A.P. 302(a) (“Issues not 

raised in the lower court are waived and cannot be raised for the first time 

on appeal.”). 

Further, this claim is not included in Appellant’s Rule 1925(b) 

statement. (See Appellant’s Concise Statement of [Errors] Complained of 

on Appeal Pursuant to Rule 1925(b), 4/12/16, at unnumbered pages 1-2). 

As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925 
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provides that issues that are not included in the Rule 1925(b) statement or 

raised in accordance with Rule 1925(b)(4) are waived. See Pa.R.A.P. 

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 

1998), superseded by rule on other grounds as stated in Commonwealth v. 

Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus, for these reasons, 

Appellant has waived her first issue.

In her second issue, Appellant argues that the trial court erred by not 

applying the doctrine of equitable estoppel, which would have tolled the 

statute of limitations. (See Appellant’s Brief, at 18-27). We disagree.

It is black-letter law that 

[a] dead man cannot be a party to an action, and any such 

attempted proceeding is completely void and of no effect. 

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. If a 

plaintiff commences an action against a person who has 

previously deceased, the only recourse is to file a new action 

naming the decedent’s personal representative as the defendant. 

Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000) (citations 

omitted).

Here, there is no dispute that Appellant filed the instant action on 

October 12, 2012, over eight months after the death of Appellee. Further, 

Appellant did not name Appellee’s personal representative2as a defendant. 

____________________________________________

2 We note that the record is devoid of evidence that the Orphans’ Court ever 

appointed a personal representative.
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Since Appellant cannot substitute Appellee’s personal representative, even if 

such person existed, her only option would be to file a new action. See id. 

However, the two-year statute of limitations has expired. See 42 Pa.C.S.A. 

§ 5524. Moreover, Appellant did not file any action against the estate within 

one year of Appellee’s death.3

Despite this, Appellant argues that Nationwide either intentionally or 

unintentionally concealed the information of Appellee’s death from her and 

that, therefore, we should equitably toll the statute of limitations. (See 

Appellant’s Brief, at 20-21). We disagree.

Fraudulent concealment of the identity of the proper defendant can toll 

the running of the statute of limitations. See Krapf v. St. Luke’s Hospital, 

4 A.3d 642, 649-50 (Pa. Super. 2010), appeal denied, 34 A.3d 831 (Pa. 

2011) (citation omitted); see also Montanya, supra at 950-51. 

The doctrine is based on a theory of estoppel, and provides 

that the defendant may not invoke the statute of limitations, if 

through fraud or concealment, he causes the plaintiff to relax his 

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3

Pennsylvania law provides that:

[t]he death of a person shall not stop the running of the statute 

of limitations applicable to any claim against him, but a claim 

which otherwise would be barred within one year after the death 

of the decedent shall not be barred until the expiration of one 

year after his death. Nothing in this section shall be construed 

to shorten the period which would have been allowed by any 

applicable statute of limitations if the decedent had continued to 

live.

20 Pa.C.S.A. § 3383.
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vigilance or deviate from his right of inquiry into the facts. The 

doctrine does not require fraud in the strictest sense 

encompassing an intent to deceive, but rather, fraud in the 

broadest sense, which includes an unintentional deception. The 

plaintiff has the burden of proving fraudulent concealment by 

clear, precise, and convincing evidence. 

Krapf, supra at 650 (citations omitted). Further,

[t]he defendant must have committed some affirmative 

independent act of concealment upon which the plaintiffs 

justifiably relied. Mere mistake or misunderstanding is 

insufficient. Also mere silence in the absence of a duty to speak 

cannot suffice to prove fraudulent concealment. 

Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002), appeal denied, 818 

A.2d 504 (Pa. 2003) (citations omitted).

Here, Appellant has not pointed to a single “affirmative independent 

act of concealment” by Nationwide. While Appellant complains that 

Nationwide negotiated with her for eight months without informing her of 

Appellee’s death, (see Appellant’s Brief, at 22), she points to nothing in the 

record which demonstrates that Nationwide had any knowledge of Appellee’s 

death. Further, while Appellant claims she “was justified in relying on 

Nationwide’s misrepresentations[,]” she fails to specify their exact nature. 

(Id. at 23). 

In Montanya, supra, the appellants claimed that the appellee’s widow 

and his insurance company actively concealed the fact of his death until 

after the running of the statute of limitations. See Montanya, supra at 

951. In support of this contention, the appellants contended that the widow 

accepted service of the complaint without informing the sheriff that appellee 
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was deceased and pre-suit correspondence with the insurance carrier 

indicated that the appellee was alive, although they admitted the insurance 

carrier never expressly said so. See id. We disagreed, finding that the 

widow’s silence did not constitute an affirmative act, that there was no 

evidence that the insurance carrier was aware of the appellee’s death, and 

that it was the appellant’s obligation to ascertain whether the Appellee was 

deceased. See id. We concluded:

. . . this Court has held that some affirmative independent act of 

concealment upon which the [appellants] justifiably relied must 

have been committed. Here, the insurance carrier’s mere 

silence or nondisclosure is insufficient. Simply put, it was the 

[appellants’] duty to ascertain the status of [the appellee] if they 

wanted to proceed properly, the insurance carrier was under no 

duty to inform the [appellants] of the status of their insured.

Id. at 952 (footnote omitted).

Similarly, in Lange, supra, the appellants argued that the insurance 

carrier fraudulently concealed that the appellee had died prior to the filing of 

suit by sending them letters that referred to the appellee as “Our Insured” 

and by stating that it had a contractual obligation to him. Lange, supra at 

339. We disagreed, holding that the mere sending of two letters “does not 

constitute the type of concealment to toll the statute of limitations.” Id. at 

340. We again stated that an insurance company does not have a duty to 

inform the appellants of the status of the insured. See id. 

The instant case presents an even stronger argument for not tolling 

the statute of limitations than in Montanya and Lange, since here the 
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Sheriff notified Appellant that Appellee had died. (See Appellant’s Response 

in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3). Appellant 

has not pointed to any affirmative action undertaken by Nationwide to 

conceal Appellee’s death, and, in fact, has not pointed to any evidence that 

would demonstrate that Nationwide even was aware of it. (See Appellant’s 

Brief, at 18-27). It was Appellant’s obligation to ascertain Appellee’s status 

prior to filing suit. See Lange, supra at 340; Montanya, supra at 952. 

Appellant failed to do so. Thus, we find that the trial court correctly 

concluded that the doctrine of fraudulent concealment was inapplicable in 

the instant matter. See Lange, supra at 340; Montanya, supra at 952. 

Appellant’s second issue lacks merit.

In her third issue, Appellant maintains that the trial court erred in 

holding that the filing of a petition for citation in the Orphans’ Court did not 

toll the statute of limitations. (See Appellant’s Brief, at 27-31). Appellant 

contends that we should apply the doctrine of “relation back” to her case. 

(Id. at 28). We disagree.

In arguing that the relation back doctrine should apply, Appellant 

relies on the Court of Common Pleas of York County’s 1969 decision in 

Stephenson v. Wildasin Estate, 48 Pa. D. & C.2d 684 (York County C.P. 

1969). (See Appellant’s Brief, at 29-31). Initially we note that, “court of 

common pleas decisions provide, at most, persuasive but not binding 

authority.” Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d 
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959, 972 (Pa. Super. 2015). Moreover, we find that Stephenson is 

inapposite.

In Stephenson, the plaintiff and the defendant were involved in an 

automobile accident and, thereafter entered into negotiations. See 

Stephenson, supra at 684. The plaintiff was unaware that the defendant 

died approximately eight months prior to the filing of the complaint; which 

the plaintiff filed four days prior to the expiration of the statute of 

limitations. See id. at 684-85. The sheriff was unable to effect service and 

informed the plaintiff of the defendant’s death. See id. at 685. The next 

day, the plaintiff instituted an action with the register of wills. See id. 

Approximately twenty days later the register of wills granted letters of 

administration; the plaintiff served a summons on the administrator that 

same day. See id. The defendant filed a motion for judgment on the 

pleadings on statute of limitations grounds and the plaintiff argued that the 

appointment of the administrator should be related back to the date on 

which the plaintiff filed the applications for letters, which was within the 

limitations period. See id. Relying on an Ohio case, Wrinkle v. Trabert, 

188 N.E.2d 587 (Ohio 1963), the trial court held that, under the facts of the 

case before it, the administrator’s appointment should relate back to the 

date the plaintiff applied for its appointment. See Stephenson, supra at 

686-88. However, in so doing, the court noted the importance of diligent 
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action on the part of the plaintiff both in applying for such an appointment 

and in seeing the appointment consummated. See id. at 687.

Initially, Appellant has pointed to little support for his contention that 

Stephenson reflects the law of this Commonwealth. However, even 

assuming, arguendo, that it does, it is factually distinct. Here, unlike in 

Stephenson, there is no evidence that Nationwide concealed the fact of 

Appellee’s death from Appellant. Rather, it appears that Appellant became 

aware of Appellee’s death months before Nationwide. (See Appellant’s 

Response in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3; 

Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at unnumbered 

page 2). Further, unlike in Stephenson, Appellant herein waited 

approximately three months before filing an action with the register of wills. 

(See Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss, 

7/02/15, at 3-4). Appellant has provided no explanation for this delay. 

Moreover, the appointment of the personal representative is still pending, 

and Appellant provides no reason for her lack of diligence in pursuing the 

action. (See Trial Ct. Op., at 2). As the trial court stated in Stephenson,

[i]f such a party fails through lack of diligence to procure 

such appointment within time to properly urge his claim or, as in 

the present cause, he starts such procedure but fails to see that 

it is consummated, the law should not come to his aid. . . . In 

fact, plaintiff was aware of [the defendant’s death] but failed 

[without explanation], through his own lack of diligence [for 

three and one-half years], to perfect the appointment.
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Stephenson, supra at 687 (quoting Wrinkle, supra at 590-91) (emphasis 

omitted). Here, Appellant failed to act with due diligence in pursuing this 

matter, therefore she is not entitled to the benefit of the relation back 

doctrine. See id. at 687; see also Lovejoy v. Georgeff, 303 A.2d 501, 

503-04 (Pa. Super. 1973) (declining to apply Stephenson and relation back 

doctrine where plaintiff did not act with due diligence in pursuing action). 

Appellant’s third issue lacks merit.

Accordingly, for the reasons discussed above, we affirm the dismissal 

of the action.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/23/2016