J

- A03011

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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 :

:

:

:

:

:

:

:

:

:

: 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 dismiss ing Appellants’ complaint

. We affirm.

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

Franklin Count y, 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, 20 1 9. Approximately three months later, on

June 20, 2019, Appellants , through counsel, commenced th is 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 ofJ

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surviving spouse, Jo Ann Kohler.” A t th at 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. O n

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

t estamentary in the Estate of Allison B . Kohler (Estate).

On October 15, 2019, Appellants filed a complaint

, at the same docket

as the ir erroneous writ

. The complaint altered the caption

, chang ing 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 T he

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 m ay be brought by or against his

personal representative alone or with other parties as though the decedent

were alive.”).

_________________ __________ ______ ____ _______

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

defendant, pursuant to Pa.R.C.P. 1033.J

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O n November 18, 2019 , Defendant filed an answer and new matter

.

Unlike the caption of the complaint, the caption of this plead ing reflected the

original caption from the writ, and identified D efendant 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 judg ment

.

Defendant a rgu ed Appellants’ action wa s 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

.

T he 2

- year statute of limitations applicable to Appellants’ action

– 42

Pa.C.S.A. § 5524(2)

– expired o n 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 judgmen t and

dismissed Appellants’ complaint with prejudice. Appellants timely appealed.

Both Appellant s and the trial court have complied with Pa.R.A.P. 1925.J

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Appellants raise a single issue for our review: “Did the lower Court err

i[ n ] granting the Defendan t’s Motion for Summary Judgment after two years

of litigation based on a claim of lack of jurisdiction?” Appellant s’ 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 inferenc es 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 er ror 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 th ey erroneous ly named a deceased person as

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

.

Appellants stat e :

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.J

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Id. at 11 (citation and some capita lization 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 s tatutes of

limitations expired.

Id. at 12 (citation and some capitaliza tion omitted)

. Finally, Appellants a ssert

“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 ob viously 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

procee ding 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.

_________________ __________ ______ ____ _______

2 T he cases App ellants 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.

Cmw lth . 1980) )

. Neither decision involve s a deceased party/estate . Also,

with regard to Peaceman , d ecisions 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)J

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2013) (collecting cases and explaining “ Thompson has been consistently

followed.”)

. Th erefore

, i f 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 4 36, 440 ( Pa. Super. 2007) (quoting

Marzella v. King

, 389 A.2d 659, 660

– 61 (1978) ).

Here , t he trial court reason ed :

[Appellants’] w rit of s ummons and the original c omplaint 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 c omplaint to name the Esta te as the d efendant. The

attempted substitution of Mrs. Kohler was improper; [Appellants’]
only remaining recourse was to file a new action and c omplaint

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 c omplaint to correct the defect because “ there can be no

amendment where there is nothing to amend. ” See Thompson

, 181 A. at 598.

* * *

When the w rit of s ummons and c omplaint were filed against

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

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

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

to substitu te a different party after the statute of limitations has

already run [.]J

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Trial Court Opinion and Order

, 8/18/20 , at 5

- 6 ( footnotes and some

capitalization omitted).

T he 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 th e defect by amending the complaint

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

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

Appellant’s original complaint against D efendant was ‘ void and of

no effect, ’ as D efendant 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

E state 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 E state [, 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. R ather, Appellants filed the ir

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 fil ed

– 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 )

.J

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Further, we are unpersuaded by Appellants’ claim that Defendant’s filing

of responsive pleadings and engag ing in discovery excus ed 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 th e 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