J. A15006/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

MARTHA GALARZA-PADRON AND 

ABEL PADRON (H/W),

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

 Appellants :

:

v. :

:

MARY KIRKALDIE, EXECUTRIX OF THE 

ESTATE OF LOUIS KIRKALDIE AND 

MARY KIRKALDIE

:

:

:

No. 1658 EDA 2015

Appeal from the Judgment Entered May 12, 2015,

in the Court of Common Pleas of Chester County

Civil Division at No. 2013-11961

MARTHA GALARZA-PADRON AND 

ABEL PADRON (H/W),

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

:

 Appellants :

:

v. :

:

MARY KIRKALDIE, EXECUTRIX OF THE 

ESTATE OF LOUIS KIRKALDIE AND 

MARY KIRKALDIE

:

:

:

No. 3323 EDA 2015

Appeal from the Order, October 7, 2015,

in the Court of Common Pleas of Chester County

Civil Division at No. 2013-11961

BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 23, 2016
J. A15006/16

- 2 -

Martha Galarza-Padron and Abel Padron, husband and wife, appeal 

from the judgment entered May 12, 2015, and the order entered October 7, 

2015. The appeal at No. 1658 EDA 2015 has been taken from the May 12, 

2015 order granting summary judgment and dismissing with prejudice all 

claims against Louis Kirkaldie, the Estate of Louis Kirkaldie, and

Mary Kirkaldie, in her capacity as personal representative of the Estate. The 

appeal at No. 3323 EDA 2015 has been taken from the October 7, 2015 

order sustaining the preliminary objections of Mary Kirkaldie and dismissing 

with prejudice all claims against her in her individual capacity. These 

appeals were consolidated sua sponte. After careful review, we affirm.

The procedural history of this matter was set forth by the trial court in 

its October 7, 2015 order sustaining Mary Kirkaldie’s preliminary objections 

in the nature of a demurrer: 

This action arises out of a motor vehicle 

accident that occurred on December 23, 2011 

involving Louis Kirkaldie and plaintiff Martha 

Galarza-Padron. Defendant Mary Kirkaldie, in her 

individual capacity, has filed preliminary objections in 

the nature of a demurrer to all claims against her. 

This case has a lengthy procedural history.

1. Procedural History

As noted above, the accident at the center of 

this case occurred on December 23, 2011. 

Louis Kirkaldie died on September 19, 2012, due to 

reasons unrelated to the accident. (See Defs.’ Prel. 

Obj. at ¶2.). Plaintiffs commenced this action on 

December 13, 2013, by filing a Writ of Summons. 

The Writ named as defendants Louis and 

Mary Kirkaldie, as husband and wife. On 
J. A15006/16

- 3 -

December 23, 2013, the day the statute of 

limitations was to run, plaintiffs filed a “Summons in 

Civil Action for Additional Defendant,” which was 

issued to the Estate of Louis Kirkaldie (the “Estate”). 

The Writs were then re-issued approximately every 

thirty days between January, 2014 and October, 

2014.

Plaintiffs finally filed a complaint on 

October 29, 2014. The complaint then named as 

defendants Mary Kirkaldie as Executrix of the Estate 

of Louis Kirkaldie and Mary Kirkaldie, individually. At 

the same time, plaintiffs filed a “Praecipe to Amend 

Caption of Complaint in Civil Action” requesting the 

Prothonotary amend the defendants’ side of the 

caption to change it from Louis Kirkaldie and 

Mary Kirkadlie [sic] (h/w) and Estate of 

Louis Kirkaldie to Mary Kirkaldie, as Executrix of the 

Estate of Louis Kirkaldie and Mary Kirkaldie, 

Individually. Moving Defendants acknowledge that 

the praecipe was filed with the consent of the 

parties. Thereafter, Defendants Louis Kirkaldie and 

Mary Kirkaldie, as Executrix of the Estate of 

Louis Kirkaldie, filed an Answer and New Matter and 

asserted as a defense the statute of limitations. 

Defendants Louis Kirkaldie and Mary Kirkaldie, as 

Executrix of the Estate of Louis Kirkaldie, eventually 

filed a motion for summary judgment based upon 

the statute of limitations, and the court granted the 

motion on May 12, 2015. On June 11, 2015, 

plaintiffs appealed the court’s summary judgment 

order.

On June 25, 2015, Ms. Kirkaldie’s present 

counsel entered his appearance in this matter. On 

July 2, 2015, Ms. Kirkaldie filed preliminary 

objections to plaintiffs’ complaint. According to 

Ms. Kirkaldie, although plaintiffs claim in various 

portions of their complaint that Ms. Kirkaldie was 

negligent, the only specific, factual allegations 

against her are that she was the wife of the [sic] 

Mr. Kirkaldie and was the holder of an excess 

insurance policy that potentially covers the accident. 

Ms. Kirkaldie requested oral argument on her 
J. A15006/16

- 4 -

preliminary objections, the court then scheduled 

[oral argument].

Plaintiffs failed to file a response of any kind to 

Ms. Kirkaldie’s preliminary objections. Plaintiff[s] did 

attend the oral argument.

Order, 10/7/15 at 1-2 n.1; Docket #39.

On October 30, 2015, appellants filed a timely notice of appeal from 

the October 7, 2015 order. Appellants have complied with 

Pa.R.A.P. 1925(b), and the trial court has filed Rule 1925(a) opinions 

addressing both the May 12, 2015, and October 7, 2015 orders. 

Appellants have raised the following issues for this court’s review: 

1. Did the trial court abuse its discretion or err as 

a matter of law by granting summary 

judgment when the record established that:

• Plaintiffs had filed suit against the 

administrator of the estate of the 

driver of the vehicle that collided with 

plaintiff’s vehicle;

• The lawsuit was filed within the 

applicable statute of limitations;

• The estate of the deceased driver 

was opened within the applicable 

statute of limitations;

• Plaintiffs filed a Praecipe to Join the 

estate of the deceased driver as a 

party within the applicable statute of 

limitations; and,

• The Complaint alleged claims against 

the estate?
J. A15006/16

- 5 -

2. Alternatively, does a Summons, which names 

an Estate and the Executrix of the Estate as 

Defendants, but does not identify the Executrix 

in that capacity until the Complaint is filed, set 

forth a valid cause of action under 20 Pa.C.S. 

§3373, which requires that an action be 

brought against a personal representative but 

does not require that the action specify that 

the personal representative is being named as 

a defendant in that capacity?

Appellants’ brief at 4.

In a supplemental brief, appellants raise the following additional issue:

1. Does a trial court have jurisdiction over 

Preliminary Objections while the case is on 

appeal to the Superior Court from an Order 

granting Summary Judgment in the same 

proceeding?

Appellants’ supplemental brief at 4.

We will briefly address appellants’ last issue first. In its opinion filed 

June 29, 2015, the trial court opined that the May 12, 2015 summary 

judgment order was interlocutory. The May 12, 2015 order dismissed any 

and all claims against Louis Kirkaldie, the Estate of Louis Kirkaldie, and 

Mary Kirkaldie, in her capacity as personal representative of the Estate of 

Louis Kirkaldie; however, the May 12, 2015 order did not dismiss appellants’ 

claims against Mary Kirkaldie, individually. Therefore, according to the trial 

court, the May 12, 2015 order did not end the litigation as to all 

claims/parties and was not a final order. (Trial court opinion, 6/29/15 at 

1-2.) It is well established that an order granting judgment against one 

defendant but leaving pending the complaint against other defendants is not 
J. A15006/16

- 6 -

a final order. Pa.R.A.P. 341. See Estate of Considine v. Wachovia Bank, 

966 A.2d 1148, 1153 (Pa.Super. 2009) (order granting summary judgment 

to one of multiple defendants not subject to interlocutory appeal as of right).

Since, according to the trial court, the May 12, 2015 order was not a final 

order appealable as of right, then it retained jurisdiction to rule on 

Mary Kirkaldie’s preliminary objections filed July 7, 2015. 

Pa.R.A.P. 1701(b)(6); see Deeter v. Dull Corp., Inc., 617 A.2d 336, 

338 n.3 (Pa.Super. 1992), appeal denied, 629 A.2d 1380 (Pa. 1993) 

(plaintiffs’ notice of appeal from nonappealable interlocutory order did not 

prevent trial court from accepting untimely amended complaint and 

dismissing it for failure to state cause of action). Appellants counter that the 

May 12, 2015 order was a final order because the remaining claim against 

Mary Kirkaldie, individually, was “illusory.” (Appellants’ supplemental brief 

at 9.) Appellants state that Louis Kirkaldie was driving the vehicle in the 

underlying accident and that they did not assert any negligence claims 

directly against Mary Kirkaldie. (Appellants’ brief at 7.) The only allegations 

in the complaint against Mary Kirkaldie were in her capacity as executrix of 

the Estate and for potential excess insurance coverage. (Id.) Appellants 

cite Breslin v. Ridarelli, 454 A.2d 80 (Pa.Super. 1982), for the proposition 

that “the happenstance of a spousal relationship does not per se impose 

liability upon a spouse for the other spouse’s negligence.” (Appellants’ 

supplemental brief at 9.) See Breslin, 454 A.2d at 83 (“Negligence will not 
J. A15006/16

- 7 -

be imputed to the husband of a motorist where the uncontradicted evidence 

is that the motorist was on a mission of her own and that her husband had 

not ordered or requested her to do any thing for him.” (citation omitted)). 

Here, appellants alleged in their complaint that Louis Kirkaldie ran a 

stop sign and struck plaintiff-wife, Martha Galarza-Padron, pushing her 

vehicle across the road and into a utility pole. Appellants alleged, inter 

alia, that Louis Kirkaldie was inattentive and traveling too fast for the 

conditions. There were no allegations of a master/servant or principal/agent 

relationship, or that Louis Kirkaldie was acting at his wife’s direction. See 

Breslin, 454 A.2d at 83 (“Although such relations, legally speaking, may 

exist between a husband and wife, it is only in rare instances that they 

do.”). As such, appellants argue that the May 12, 2015 order granting 

summary judgment disposed of all viable claims against Mary Kirkaldie and 

was in reality a final and appealable order, which divested the trial court of 

jurisdiction. (Appellants’ supplemental brief at 10.)

Even assuming, as the trial court determined, that the May 12, 2015 

summary judgment order was not a final order because Mary Kirkaldie, 

individually, remained in the case, there is no jurisdictional impediment to 

our review because the October 7, 2015 order sustaining Mary Kirkaldie’s 

preliminary objections in the nature of a demurrer ended the case and put 

the litigants out of court. Therefore, the October 7, 2015 order rendered the 

May 12, 2015 partial summary judgment order final for appeal purposes. 
J. A15006/16

- 8 -

See K.H. v. J.R., 826 A.2d 863, 869 (Pa. 2003) (“Thus, in an action 

involving multiple defendants, and in the absence of an express 

determination by the trial court under Rule 341(c), an order granting 

summary judgment as to one party is treated as appealable as of right only 

after the disposition of the claims involving the remaining parties. See 

generally Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 650 

(Pa.Super. 2002) (stating that an order settling a case as to the remaining 

parties rendered the prior orders granting summary judgment final under 

Rule 341).”).

Alternatively, even if the May 12, 2015 order was a final order because 

the claims against Mary Kirkaldie, individually, were “illusory,” as appellants 

argue, and therefore, the trial court lacked jurisdiction to rule on 

Mary Kirkaldie’s July 2, 2015 preliminary objections, the matter is basically 

moot. Appellants failed to respond to Mary Kirkaldie’s preliminary 

objections, and they concede on appeal that their negligence claims against 

Mary Kirkaldie were based solely upon Louis Kirkaldie’s negligence in the 

underlying accident. (Appellants’ brief at 14.) There were no factual 

allegations in the complaint connecting Mary Kirkaldie to appellants or the 

subject accident. The only facts alleged were that she was Louis Kirkaldie’s 

wife and was the policyholder of excess liability coverage. According to 

appellants, by barring them from proceeding against Mary Kirkaldie in her 

role as executrix of the Estate, the trial court effectively determined the 
J. A15006/16

- 9 -

rights of the parties and extinguished all of appellants’ viable claims. 

(Appellants’ brief at 13.) 

We now turn to appellants’ primary argument on appeal, which is that 

by naming Mary Kirkaldie and the Estate as defendants before the statute of 

limitations ran, they satisfied 20 Pa.C.S.A. § 3373, which provides, “An 

action or proceeding to enforce any right or liability which survives a 

decedent may be brought by or against his personal representative alone or 

with other parties as though the decedent were alive.” Appellants argue that 

the statute merely requires that the action be brought against the 

decedent’s personal representative, not that a defendant be named in that 

role. (Appellants’ brief at 18.) According to appellants, “The statute does 

not require, or render it a fatal defect, if the caption does not state that the 

person is named as a defendant in his or her capacity as the personal 

representative.” (Id.) Therefore, appellants argue that the trial court 

should have focused on whether they listed the personal representative of 

the Estate as a defendant, which they did. (Id. at 17.) Appellants argue 

that it was not a fatal defect that they did not identify Mary Kirkaldie in her 

capacity as executrix until after the statute of limitations had expired, and 

therefore, the trial court erred in granting summary judgment. (Id. at 

16-17.) We disagree.

Th[e] scope of review of an order granting summary 

judgment is plenary. Our standard of review is 

clear: the trial court’s order will be reversed only 

where it is established that the court committed an 
J. A15006/16

- 10 -

error of law or clearly abused its discretion. 

Summary judgment is appropriate only in those 

cases where the record clearly demonstrates that 

there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter 

of law. The reviewing court must view the record in 

the light most favorable to the nonmoving party, 

resolving all doubts as to the existence of a genuine 

issue of material fact against the moving party. 

When the facts are so clear that reasonable minds 

cannot differ, a trial court may properly enter 

summary judgment.

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221-1222 

(Pa. 2002).

As stated above, the accident in this case occurred on December 23, 

2011. Louis Kirkaldie died on September 19, 2012, and an Estate was 

raised on August 13, 2013. Appellants filed a writ of summons on 

December 13, 2013, naming Louis and Mary Kirkaldie as defendants. 

However, it is well settled that an action filed against a dead person is void 

ab initio. See Custren v. Curtis, 572 A.2d 1290, 1291 (Pa.Super. 1990), 

appeal denied, 593 A.2d 419 (Pa. 1991) (“A dead man cannot be a party 

to an action, and any such attempted proceeding against him is completely 

void and of no effect.” (citations omitted)).

On December 23, 2013, the day the statute of limitations was to 

expire, appellants filed a “Summons in Civil Action for Additional Defendant,” 

issued to the Estate of Louis Kirkaldie. However, appellants did not name 

Mary Kirkaldie, in her capacity as personal representative of the Estate, as a 

defendant. See Nelson v. Estate of Massey, 686 A.2d 1350, 1351 
J. A15006/16

- 11 -

(Pa.Super. 1996), appeal denied, 694 A.2d 622 (Pa. 1997) (estate of the 

decedent is not a proper party-defendant; rather, any action that survives a 

decedent must be brought by or against the personal representative), citing 

Finn v. Dugan, 394 A.2d 595, 596 (Pa.Super. 1978); Marzella v. King, 

389 A.2d 659, 660 (Pa.Super. 1978) (“It is well settled that all actions that 

survive a decedent must be brought by or against the personal 

representative.”) (citations omitted).

Appellants finally filed a complaint on October 29, 2014, outside the 

applicable 2-year statute of limitations, naming as defendants Mary Kirkaldie 

as Executrix of the Estate of Louis Kirkaldie and Mary Kirkaldie, Individually. 

They also filed a praecipe to amend the caption, requesting the prothonotary 

to amend the defendants’ side of the caption from Louis Kirkaldie and 

Mary Kirkaldie (h/w) and Estate of Louis Kirkaldie, to Mary Kirkaldie, as 

Executrix of the Estate of Louis Kirkaldie and Mary Kirkaldie, Individually. 

Unfortunately for appellants, it was too late to amend the caption at that 

point, as the statute of limitations had run. Marzella, supra (affirming trial 

court’s order granting defendants’ motions to dismiss and denying plaintiffs 

leave to amend their complaint, after the running of the statute of 

limitations, to name the administrator of the estate as a party, where they 

knew the decedent had died when they filed the praecipe for writ of 

summons naming the estate as a defendant, but made no effort to revise 

the praecipe to designate the administrator as a party); Finn, supra (an 
J. A15006/16

- 12 -

amendment to the complaint to later name the personal representative of 

the estate could not be made since the statute of limitations had run); 

Thompson v. Peck, 181 A. 597, 598 (Pa. 1935) (reversing an order 

granting the plaintiff’s petition to name the decedent defendant’s executors 

as the proper parties after the running of the statute of limitations, stating, 

“[t]here can be no amendment where there is nothing to amend. In any 

event, an amendment, the effect of which is to bring in new parties after the 

running of the statute of limitations, will not be permitted.” (citations 

omitted)).

As discussed above, the crux of this appeal is whether appellants’ 

naming of Mary Kirkaldie as a defendant within the two-year limitations 

period is sufficient to satisfy 20 Pa.C.S.A. § 3373. Appellants argue that 

there is no authority for the proposition that failure to specify the 

defendant’s role as personal representative is a fatal defect. (Appellants’ 

brief at 19.) Appellants contend that all that is required is that the personal 

representative be appointed prior to expiration of the statute of limitations, 

and that the personal representative be named as a defendant before the 

expiration of the statute of limitations. (Id. at 18.) We disagree.

We find the following decisions to be instructive. In Lovejoy v. 

Georgeff, 303 A.2d 501 (Pa.Super. 1973), the underlying accident occurred 

on November 8, 1968. Id. at 502. The alleged tortfeasor, the driver of the 

vehicle, died the day following the accident, which was known to the 
J. A15006/16

- 13 -

plaintiffs. Id. After settlement negotiations fell through, the plaintiffs had 

citations issued to the decedent’s parents notifying them that letters of 

administration on his estate had been applied for, and directing them to 

appear before the Register of Wills to take action or explain their position 

with regard to the application. Id. The citations were issued on 

November 2, 1970, within two years of the accident, but they permitted the 

parents to appear as late as November 12, 1970, after the two-year period 

would have elapsed. Id.

On November 5, 1970, the plaintiffs filed a writ of summons naming as 

defendants Nicholas Georgeff, both as an individual and in his capacity as 

“administrator” of the tortfeasor’s estate, and Robert J. Georgeff as an 

individual. Id. at 502-503. However, Nicholas Georgeff, the father of the 

driver, had not applied for letters of administration until November 12, 1970, 

the final day permitted in the citations for appearance. Id. at 502. The 

mother of the driver renounced her right to letters. Id.

On July 7, 1971, following the filing of the plaintiffs’ complaint, 

Nicholas Georgeff moved for judgment on the pleadings, which was granted 

insofar as the pleadings related to Nicholas Georgeff as administrator. Id. at 

503. The plaintiffs appealed, and this court affirmed, finding that because 

Nicholas Georgeff had not yet received letters of administration on 

November 5, 1970, when the writ of summons was issued, the statute of 

limitations barred any claim against him in his capacity as administrator. 
J. A15006/16

- 14 -

This court in Lovejoy refused to toll the statute by relating back the 

appointment of Nicholas Georgeff to the time of the filing of the writ of 

summons. Id. at 503-504. The Lovejoy court found that with the exercise 

of ordinary diligence, the plaintiffs could have secured the appointment of an 

administrator prior to suit within the two-year time period:

Here appellants knew of the tortfeasor’s death the 

day after the accident, knew what they had to do to 

raise administration, and slept on their rights until a 

few days before the 2-year statutory period was to 

expire.

Id. at 504. Thus, in Lovejoy, even though the timely writ of summons 

named Nicholas Georgeff, “administrator” as a defendant, it was held that 

the statute of limitations acted as a complete bar to recovery:

Absent a relation back of letters to that date 

[(November 5, 1970)], no personal representative of 

the decedent can be considered to have been in 

existence at the time of filing of the summons.

Id. at 503 n.3 (citation omitted).

Consequently, unless the appointment of Nicholas 

Georgeff related back to the time of filing of the 

summons, the filing would not have tolled the 

statute of limitations with respect to the deceased 

driver’s estate.

Id.

Similarly, in Miller v. Jacobs, 65 A.2d 362 (Pa. 1949), the plaintiff 

brought suit against “Harry P. Jacobs, Administrator of the Estate of 

J.A. Jacobs, Deceased.” Id. at 364. The victim, James Edward Miller, died 

in 1945 while a passenger on a ferryboat operated by Harry P. Jacobs, and a 
J. A15006/16

- 15 -

wrongful death action was instituted to recover damages for his death. Id.

at 363-364. J.A. Jacobs had operated the ferry until his death in 1904. Id.

at 363. Miller had been pushed off the ferry by an automobile rolling 

forward and striking him, and he drowned. Id. The negligence alleged was 

failure to secure the automobiles on the ferry and failure to have an 

employee stationed on the boat, in violation of federal regulations. Id. at 

364. Recovery was being sought from the estate and not from the 

administrator in his individual capacity. Id. However, the decedent’s estate 

was exempt from liability. Id. at 364-365. 

On appeal from the grant of judgment notwithstanding the verdict, the 

plaintiff, the administratrix of Miller’s estate, argued that she should be 

allowed to amend the name of the defendant by striking off the words 

“Administrator of the Estate of J.A. Jacobs, Deceased,” leaving Harry P. 

Jacobs named as an individual. Id. at 365. Our supreme court rejected the 

plaintiff’s position, stating,

While it is true that the name of a party already on

the record may be corrected at any time, it is 

elementary that a new party, or a party in a 

different capacity, cannot be brought on the record 

after the statute of limitations has become a bar.

Id. (emphasis in original). 

So in Stine v. Herr, Administratrix, 78 Pa. Super. 

226, the court refused to allow a judgment in an 

action of trespass against a defendant as 

administratrix of the estate of a decedent to be 

amended, more than two years after the right of 

action had accrued, so as to bring the defendant 
J. A15006/16

- 16 -

upon the record in her individual capacity. And in 

Barrett v. First Mechanics National Bank, 133 

Pa. Super. 366, 370, 3 A.2d 36, 38, where an 

attachment was brought against the executors of a 

decedent’s estate as defendants, it was said that 

“While the plaintiff may have a cause of action 

against the defendants personally * * * he did not 

bring his action in that form. * * * [and] a change 

of the defendant from a representative to an 

individual capacity, or vice versa, cannot be 

made after the statute of limitations has run, 

for it involves a change of parties.”

Id. (emphasis added).

Therefore, appellants’ argument that merely listing Mary Kirkaldie as a 

defendant was sufficient to satisfy 20 Pa.C.S.A. § 3373 misses the mark. A 

party cannot be sued in a different capacity after the running of the statute 

of limitations. As the trial court observed,

By the time [appellants] finally filed a complaint in 

October, 2014, with an amended caption, by 

agreement, to reflect that Mary Kirkaldie was the 

personal representative of Louis Kirkaldie, as 

Executrix of the Estate of Louis Kirkaldie, the statute 

of limitations had already run. This was the first 

time, three years after the accident, that 

[appellants] properly asserted a claim against the 

Estate.

Order, 5/12/15 at 3 n.1. We are constrained to agree. Therefore, the trial 

court did not err in granting summary judgment for appellees. 

Orders affirmed. 
J. A15006/16

- 17 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/23/2016