J-A03011-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEFFREY AND ANN YORTY 

Appellants

v.

ALLISON B. KOHLER, DECEASED IN 

CARE OF SURVIVING SPOUSE, JO 

ANN KOHLER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1131 MDA 2020

Appeal from the Order Entered August 18, 2020

In the Court of Common Pleas of Franklin County

Civil Division at No(s): 2019-02517

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 13, 2021

Jeffrey and Ann Yorty (Appellants), plaintiffs in the underlying action

against “Allison B. Kohler, deceased in care of surviving spouse, Jo Ann Kohler” 

(Defendant), appeal from the order granting Defendant’s motion for summary 

judgment and dismissing Appellants’ complaint. We affirm.

On November 22, 2017, Jeffrey Yorty (Yorty) was driving a car in 

Franklin County, when a car driven by Allison B. Kohler (Mr. Kohler) struck 

Yorty’s car from behind. Yorty alleged the accident caused him injuries.

Mr. Kohler died on April 1, 2019. Approximately three months later, on 

June 20, 2019, Appellants, through counsel, commenced this negligence/loss 

of consortium action by writ of summons. Importantly, the caption of the writ

named as the party defendant: “Allison B. Kohler, Deceased, in care of 
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surviving spouse, Jo Ann Kohler.” At that time, when a sheriff served the writ 

on Mr. Kohler’s widow, Jo Ann Kohler (Mrs. Kohler), an estate had not yet

been created for the late Mr. Kohler. Appellants do not dispute that the writ 

“erroneously” named a deceased person as the defendant. See, e.g., 

Appellants’ Brief at 8 (“[Appellants] concede that the caption of the Writ was 

erroneous and ineffective.”).

On September 16, 2019, Appellants filed a petition with the Register of 

Wills to compel Mr. Kohler’s heirs/representatives to open an estate. On 

September 27, 2019, the Register of Wills granted Mrs. Kohler letters 

testamentary in the Estate of Allison B. Kohler (Estate). 

On October 15, 2019, Appellants filed a complaint, at the same docket

as their erroneous writ. The complaint altered the caption, changing the name 

of the defendant from “Allison B. Kohler, Deceased, in care of surviving 

spouse, Jo Ann Kohler” to “The Estate of Allison B. Kohler, Deceased.”1 The 

complaint did not name Mrs. Kohler as the personal representative of the 

Estate. See 20 Pa.C.S.A. § 3373 (“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.”).

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1 Appellants did not seek leave to amend their original pleading to add a new 

defendant, pursuant to Pa.R.C.P. 1033. 
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On November 18, 2019, Defendant filed an answer and new matter. 

Unlike the caption of the complaint, the caption of this pleading reflected the 

original caption from the writ, and identified Defendant as: “Allison B. Kohler, 

Deceased, in care of surviving spouse, Jo Ann Kohler.” Thereafter, the parties 

engaged in discovery.

On May 13, 2020, Defendant filed a motion for summary judgment.

Defendant argued Appellants’ action was a legal nullity because the trial court 

lacked subject matter jurisdiction. Defendant asserted that Appellants 

improperly filed the writ against a deceased person, Mr. Kohler, and the

attempt by Appellants to amend the party defendant in the complaint was 

improper.

The 2-year statute of limitations applicable to Appellants’ action – 42 

Pa.C.S.A. § 5524(2) – expired on April 1, 2020. See 20 Pa.C.S.A. § 3383 

(“The 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.”).

Appellants filed an answer in opposition to summary judgment on June 

5, 2020. The trial court conducted a hearing on August 11, 2020. By order 

entered August 18, 2020, the trial court granted summary judgment and 

dismissed Appellants’ complaint with prejudice. Appellants timely appealed. 

Both Appellants and the trial court have complied with Pa.R.A.P. 1925.
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Appellants raise a single issue for our review: “Did the lower Court err 

i[n] granting the Defendant’s Motion for Summary Judgment after two years 

of litigation based on a claim of lack of jurisdiction?” Appellants’ Brief at 3.

We apply the following standard in reviewing the grant of summary 

judgment:

[S]ummary judgment is only appropriate in cases where there are

no genuine issues of material fact and the moving party is entitled

to judgment as a matter of law. Pa.R.C.P. 1035.2(1). When

considering a motion for summary judgment, the trial court must

take all facts of record and reasonable inferences therefrom in a

light most favorable to the non-moving party and must resolve all

doubts as to the existence of a genuine issue of material fact

against the moving party. An appellate court may reverse a grant

of summary judgment if there has been an error of law or an

abuse of discretion. Because the claim regarding whether there

are genuine issues of material fact is a question of law, our

standard of review is de novo and our scope of review is plenary.

Nicolaou v. Martin, 195 A.3d 880, 891-92 (Pa. 2018) (some citations

omitted). 

Appellants argue the trial court erred in granting summary judgment

because Defendant was fully aware of the identity of the party defendant

Appellants “intended” to name. See Appellants’ Brief at 7, 10. Appellants 

assert that even though they erroneously named a deceased person as 

defendant in the writ, they should be permitted to amend the caption. 

Appellants state:

Under no circumstances did the miscaptioning of [Appellants’] suit 

[] modify, in any way whatsoever, whom the intended defendant 

was, nor would it subject alternate assets to be “subject to 

liability” if permitted. Absent said factor, there lacks such an 

impediment to the modification of the caption. 
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Id. at 11 (citation and some capitalization omitted).

Further, Appellants claim: 

[Defendant] clearly lulled [Appellants] into believing they were 

defending the case on the merit, by filing an answer with new 

matter that did not raise the issue of the proper party, agreeing 

to the entry of a case management order with the Estate listed as 

the defendant, propounding written discovery and later scheduling 

depositions, all of which delayed this case until the statutes of 

limitations expired.

Id. at 12 (citation and some capitalization omitted). Finally, Appellants assert

“the Estate was privileged, pursuant to Pa.R.C.P. 1030, to raise the issue of a 

wrongly cited defendant in the caption via New Matter. The Estate . . . 

strategically chose to skip this significant issue, which obviously would have 

placed [Appellants] on notice of such[.]” Id. at 9.2

It is well established in Pennsylvania that,

[b]y its very terms, an action at law implies the existence of legal 

parties; they may be natural or artificial persons, but they must 

be entities which the law recognizes as competent. A dead man

cannot be a party to an action, and any such attempted

proceeding is completely void and of no effect[.] 

Thompson v. Peck, 181 A. 597, 598 (Pa. 1935) (citations omitted, emphasis

added); see also McClean v. Djerassi, 84 A.3d 1067, 1071 (Pa. Super. 

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2 The cases Appellants cite to support their argument are distinguishable. See

Appellants’ Brief at 10-13 (citing Lafferty v. Alan Wexler Agency, Inc., 574 

A.2d 671 (Pa. Super. 1990), and Peaceman v. Tedesco, 414 A.2d 1119 (Pa. 

Cmwlth. 1980)). Neither decision involves a deceased party/estate. Also, 

with regard to Peaceman, decisions of the Commonwealth Court are not 

binding on this Court. See, e.g., Citizens’ Ambulance Serv. Inc. v. 

Gateway Health Plan, 806 A.2d 443, 447 n.3 (Pa. Super. 2002)
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2013) (collecting cases and explaining “Thompson has been consistently

followed.”). Therefore, if a plaintiff commences an action against a deceased 

person, 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). “‘[A]ll actions that survive a decedent must 

be brought by or against the personal representative’ and ‘a decedent’s estate 

cannot be a party to litigation unless a personal representative exists.’” 

Salvadia v. Ashbrook, 923 A.2d 436, 440 (Pa. Super. 2007) (quoting 

Marzella v. King, 389 A.2d 659, 660–61 (1978)).

Here, the trial court reasoned:

[Appellants’] writ of summons and the original complaint against 

Mr. Kohler are a nullity because he died before [Appellants] 

commenced the lawsuit. We agree with Defendant that 

[Appellants’] change in the caption from “Allison B. Kohler, 

Deceased, in care of surviving spouse, Jo Ann Kohler” to “The 

Estate of Allison B. Kohler, Deceased” was an attempt to amend 

the complaint to name the Estate as the defendant. The 

attempted substitution of Mrs. Kohler was improper; [Appellants’] 

only remaining recourse was to file a new action and complaint 

against Mrs. Kohler in her capacity as the personal representative 

of the late Mr. Kohler’s Estate. See Montanya, 757 A.2d at 950. 

[Appellants] failed to do so and have no legal authority to amend 

the complaint to correct the defect because “there can be no 

amendment where there is nothing to amend.” See Thompson, 

181 A. at 598.

 * * *

When the writ of summons and complaint were filed against 

“Allison B. Kohler, Deceased, in care of surviving spouse, Jo Ann 

Kohler,” those documents failed to designate a legal, competent 

entity as defendant. Therefore, [Appellants] are not [] permitted 

to substitute a different party after the statute of limitations has 

already run[.]
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Trial Court Opinion and Order, 8/18/20, at 5-6 (footnotes and some 

capitalization omitted). 

The trial court’s rationale is supported by the record and law. In 

McClean, supra, the plaintiff/appellant filed the original complaint against a 

deceased person and attempted to cure the defect by amending the complaint

after the statute of limitations had expired. This Court affirmed the trial 

court’s dismissal of the complaint with prejudice. We explained: 

Appellant’s original complaint against Defendant was ‘void and of

no effect,’ as Defendant was deceased at the time of filing. See

Thompson, 181 A. at 598 . . . . Appellant’s insistence that he

was entitled to amend the complaint in order to substitute the

Estate as defendant is mistaken; Thompson clearly states a

complaint against a deceased defendant cannot be cured by

amendment. See Thompson, 181 A. at 598. Appellant’s only

recourse was to file a new complaint against the Estate[, which

Appellant did not do]. See Montanya, 757 A.2d at 950.

McClean, 84 A.3d at 1071.

Likewise, Appellants did not file a new action against Mr. Kohler’s Estate

and Mrs. Kohler as personal representative. Rather, Appellants filed their

complaint at the same docket as the writ, which was a legal nullity. See id.;

see also Ehrhardt v. Costello, 264 A.2d 620, 622 (Pa. 1970) (where plaintiff 

originally filed a void action against a deceased person by writ, but later filed

– after the statute of limitations had run – a complaint against the personal 

representative of the deceased at the same docket, the new filing did not cure 

the jurisdictional defect).
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Further, we are unpersuaded by Appellants’ claim that Defendant’s filing

of responsive pleadings and engaging in discovery excused the jurisdictional 

defect. It is well-settled that the issue of subject matter jurisdiction may 

never be waived. See Yentzer v. Taylor Wine Co., 186 A.2d 396, 398 (Pa. 

1962); Robert Half Int’l, Inc. v. Marlton Techs., Inc., 902 A.2d 519, 524-

25 (Pa. Super. 2006) (en banc). Our Supreme Court has stated:

The establishment of jurisdiction is of equal importance as the 

establishment of a meritorious claim for relief. Jurisdiction is the 

predicate upon which a consideration of the merits must rest. 

Where the jurisdiction of the court has been lost because of the 

staleness of the complaint, the attractiveness of an argument on 

the merits is of no moment because the tribunal is without the 

power to grant the requested relief.

Robinson v. Com., Pennsylvania Bd. of Prob. & Parole, 582 A.2d 857,

860 (Pa. 1990).

For the above reasons, Appellants’ issue does not merit relief. We 

therefore affirm the trial court’s order granting Defendant’s motion for 

summary judgment and dismissing Appellants’ complaint.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/13/2021