J-S73002-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN MARSH 

Appellant

v.

COLLEEN MARSH LIZZA 

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ESTATE OF MARCELLA M. MARSH, BY 

AND THROUGH THE ADMINISTRATOR, 

BRIAN MARSH 

Appellant

v.

COLLEEN MARSH LIZZA

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 532 MDA 2017

Appeal from the Order Entered March 1, 2017

In the Court of Common Pleas of Lackawanna County Civil Division at 

No(s): 2812 of 2016

BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2018

Appellant, Brian Marsh, appeals from the order entered on March 1, 

2017, sustaining preliminary objections filed by Colleen Marsh Lizza (Lizza) 

in response to a wrongful death and survivor action commenced by 

Appellant. We affirm.

We briefly summarize the facts and procedural history of this case as 

follows. On May 3, 2016, Appellant instituted an action under the Wrongful 
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Death Act and Survival Acts1to recover damages against his sister, Lizza. 

Specifically, Appellant filed a praecipe for the issuance of a writ of summons 

in his capacity as the administrator of the estate of his mother, Marcella M. 

Marsh (Marcella). Thereafter, Appellant reissued the writ of summons, as 

administrator on behalf of the estate, on June 2, 2016, June 30, 2016, and 

July 21, 2016. There is no proof in the record that the original writ, or any 

of these reissued writs, was served upon Lizza. 

On August 10, 2016, Appellant filed a praecipe to reissue and amend 

the writ of summons. Pertinent to this appeal, the August 19, 2016 praecipe 

and writ named Appellant in his individual capacity as the plaintiff and no 

longer identified Appellant, as a claimant, in his capacity as administrator of 

his mother’s estate. The August 10, 2016 praecipe and writ also provided a 

different street address for Lizza. Lizza was served with that praecipe and 

writ of summons on September 19, 2016.

On September 22, 2016, Appellant filed a complaint under the 

Wrongful Death Act and Survival Acts, in his individual capacity, alleging that 

Lizza, a trained nurse and Marcella’s caregiver, acted wantonly, recklessly, 

and negligently, ultimately leading to their mother’s death on July 28, 2013. 

On October 12, 2016, Lizza filed preliminary objections to the complaint. 

Lizza challenged, inter alia, the amended writ of summons and subsequent 

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1 42 Pa.C.S.A. §§ 8301 and 8302, respectively.
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complaint because, although Appellant was the named plaintiff in all of the 

various filings, Appellant unilaterally changed the capacity in which he was 

asserting his claims without consent or leave of court. Lizza also challenged 

Appellant’s capacity to sue as an administrator unless duly appointed and 

argued Appellant’s wrongful death and survivor claims were “untimely and 

therefore barred by the two year statute of limitations[.]” Preliminary 

Objections, 10/12/2016, at 3-4.2 In response to Lizza’s preliminary 

objections, Appellant recognized that application of the statute of limitations 

is a question of law for a trial court, but argued that dismissal of the 

complaint was unwarranted as there remained issues of fact for a factfinder 

under the discovery rule. More specifically, Appellant asserted that,

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2 Pursuant to the Pennsylvania Rules of Civil Procedure, the defense that a 

claim is barred by the statute of limitations is required to be set forth in a 

responsive pleading entitled “New Matter.” Pa.R.Civ.P. 1030(a) (“all 

affirmative defenses including ... statute of limitations... shall be pleaded in a 

responsive pleading under the heading “New Matter”.) Thus, it was 

procedurally improper for Lizza to raise the defense of statute of limitations 

as a preliminary objection. However, our Court has held that “[w]here a 

party erroneously asserts substantive defenses in preliminary objections 

rather than to raise these defenses by answer or in new matter, the failure 

of the opposing party to file preliminary objections to the defective 

preliminary objections, raising the erroneous defenses, waives the 

procedural defect and allows the trial court to rule on the preliminary 

objections.” Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992), aff'd, 646 

A.2d 1166 (Pa. 1994). In this instance, Appellant failed to file preliminary 

objections to Lizza’s preliminary objections; therefore, any claim that Lizza’s 

preliminary objections were procedurally defective is waived and Lizza’s 

preliminary objection raising the statute of limitations defense could be 

decided by the trial court. 
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“questions regarding [Marcella’s] cause of death did not begin to arise until 

the latter part of 2014” even though her death resulted on “July 28, 2013[.]” 

Memorandum of Law in Opposition to Preliminary Objections, 11/28/2016, at 

7-8. The trial court held oral argument on December 12, 2016. 

On March 1, 2017, the trial court entered an order and opinion

sustaining Lizza’s preliminary objections and striking Appellant’s complaint. 

This timely appeal followed.3

Appellant raises the following issues for our review:

1. Whether the trial court committed a manifest error of law or 

an abuse of discretion in sustaining [Lizza’s] preliminary 

objection under Pa.R.C.P. 1028(a)(1) and in striking the 

amended writ of summons and subsequent complaint by 

classifying the summons as a “pleading” in direct opposition 

to Pa.R.C.P. 1017 and improperly ascertaining it could not be 

amended without the consent of [Lizza] or leave of court 

under Pa.R.C.P. 1033 and thereby was facially defective and a 

nullity?

2. Whether the trial court committed a manifest error of law or 

an abuse of discretion in sustaining [Lizza’s] preliminary 

objection under Pa.R.C.P. 1028(a)(1) and in striking the 

amended writ of summons and subsequent complaint by 

failing to consider that the amendment to the summons did 

not add a new party, but only amended the summons to 

change the name or the capacity [in which] Appellant 

commenced the action?

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3

 Appellant filed a notice of appeal on March 21, 2017. On March 23, 2017, 

the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely. The trial court relies upon its earlier March 1, 2017 opinion as its 

rationale for sustaining Lizza’s preliminary objections. 
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3. Whether the trial court committed a manifest error of law or 

an abuse of discretion in sustaining [Lizza’s] preliminary 

objection under Pa.R.C.P. 1028(a)(1) and in striking the 

amended writ of summons and subsequent complaint by 

failing to consider that the amendment to the summons only 

amended the summons as to what capacity [] Appellant 

commenced the action and that [Lizza] suffered no prejudice 

from the amendment?

4. Whether the trial court committed a manifest error of law or 

an abuse of discretion in sustaining [Lizza’s] preliminary 

objection under Pa.R.C.P. 1028(a)(1) and in striking the 

amended writ of summons and subsequent complaint by

disregarding, failing to consider, overlooking the facts of 

record, and wrongfully applying [] a two year statute of 

limitations to the amendment to the summons and 

subsequently filed complaint?

5. Whether the trial court committed a manifest error of law or 

an abuse of discretion by failing to consider the issue of the 

legal sufficiency of the complaint?

Appellant’s Brief at 4-5 (superfluous capitalization, italics, and suggested 

answers omitted). 

Because Appellant’s fourth issue is dispositive, we will address that 

issue first. In sum, Appellant argues as follows:

[] Appellant’s [c]omplaint alleges that the decedent died in 2013 

and was listed as having died of natural causes. [] Appellant 

brought the wrongful death suit in 2016 only after learning 

further facts about [Lizza’s] actionable behavior on the evening 

of the decedent’s death. The [t]rial [c]ourt relied on case law

holding that the “discovery rule” does not apply to wrongful 

death actions. However, given that the [t]rial [c]ourt analyzed 

the amendment to the writ of summons and the preliminary 

objections under the wrong rule – Pa.R.C.P. 1033(a) – the facts 

alleged in the [c]omplaint address matters relevant to more than 

just the discovery rule. 
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Upon remand, therefore, the [t]rial [c]ourt should determine if [] 

Appellant can plead and prove facts sufficient to show that 

[Lizza] has intentionally or fraudulently concealed the 

circumstances of the decedent’s death, so as to toll the statute 

of limitations or to estop her from asserting the defense.

Appellant’s Brief at 23.

Initially, we note that, although Appellant raised the issue of the 

discovery rule before the trial court, he never alleged fraudulent 

concealment, did not raise fraudulent concealment in his Pa.R.A.P. 1925(b) 

statement, and, in fact, raises that legal theory for the first time on appeal. 

We deem Appellant’s fraudulent concealment claim waived. See Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the [Pa.R.A.P. 1925(b)] Statement 

[...] are waived.”); Pa.R.A.P. 302 (“Issues not raised in the lower court are 

waived and cannot be raised for the first time on appeal.”). Moreover, while 

Appellant mentions the discovery rule in his brief, he does not cite legal 

authority to support his claim that the rule is applicable in wrongful death 

actions. We could deem this issue waived. See Commonwealth v. 

Yocolano, 169 A.3d 47, 60 n.9 (Pa. Super. 2017)

(“Appellate arguments which fail to adhere to [our] rules [of appellate 

procedure] may be considered waived, and arguments which are not 

appropriately developed are waived. Arguments not appropriately developed 

include those where the party has failed to cite any authority in support of a 

contention.”). We choose not to find the issue waived. However, for the 

following reasons, Appellant’s argument lacks merit.
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We review an order sustaining preliminary objections to determine 

whether the trial court committed an error of law. Feingold v. Hendrzak, 

15 A.3d 937, 941 (Pa. Super. 2011). Moreover, this Court has previously 

determined:

Ordinarily most questions relating to the applicability of the 

defense of the statute of limitations are questions of fact to be 

determined by the jury. Specifically, the questions of whether a 

plaintiff has exercised due diligence in discovering the incidence 

of his injury is usually a jury question. Whether the statute has 

run on a claim is usually a question of law for the judge, but 

where [] the issue involves a factual determination, i.e. what is a 

reasonable [discovery] period, the determination is for the jury.

Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003).

Our Supreme Court recently reaffirmed the following, longstanding 

legal principles:

[A] survival action is not an independent cause of action, but a 

continuation of a cause of action that accrued to the decedent, 

and the latest time when the statute of limitations runs is at the 

decedent's death.

The statute of limitations will, of course, begin to run prior 

to death with respect to injuries that the afflicted individual 

should reasonably have “discovered” while alive, and, for this 

reason, [] the survival statute begins to run, “at the latest,” 

at death. The explanation for this lies in the nature of the 

survival cause of action, for [] “the survival statutes do not 

create a new cause of action; they simply permit a personal 

representative to enforce a cause of action which has already 

accrued to the deceased before his death.” The “accrual” concept 

was expressly recognized []; hence, the statute of limitations 

was regarded as running, at the latest, from the time of death, 

unless it had earlier “accrued” through the fact that the victim 

knew, or should reasonably have known, of his injury.

* * *
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In the context of survival actions, which, as heretofore 

discussed, merely permit a personal representative to pursue a 

cause of action that had already accrued to a victim prior 

to death, the [rule expressed in] Pocono International 

Raceway v. Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983)

[] causes the statute of limitations to commence to run on the 

date when the victim ascertained, or in the exercise of due 

diligence should have ascertained, the fact of a cause of action. 

In no case, however, can that date be later than the date 

of death; hence, the statute runs, at the latest, from death. 

Because death is a definitely ascertainable event, and 

survivors are put on notice that, if an action is to be 

brought, the cause of action must be determined through 

the extensive means available at the time of death, there 

is no basis to extend application of the discovery rule to 

permit the filing of survival actions, 

or wrongful death actions, at times beyond the specified 

statutory period.

Dubose v. Quinlan, 2017 WL 5616235, at *9–10 (Pa. 2017) (internal 

citations and original brackets omitted; italics in original; emphasis added). 

The statute of limitations for survival and wrongful death actions is two 

years. See 42 Pa.C.S.A. § 5524(2).

Here, the trial court determined:

According to [Appellant’s] own binding admissions contained in 

his complaint, Marcella died on July 28, 2013. [Appellant] did 

not file his complaint until September 22, 2016, more than three 

years after the date of Marcella’s death. Although [Appellant] 

baldly argues that the statute of limitations in this matter is 

governed under the discovery rule, it is well-settled in this 

Commonwealth that the two-year statute of limitations 

applicable to wrongful death and survival actions under 42 

Pa.C.S.A. § 5524(2) may not be extended by the discovery rule, 

and that the latest date on which the statute of limitations 

begins to run for wrongful death and survival claims is the date 

of the decedent’s death.

* * *
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Since the two-year statute of limitations had already expired at 

the time that [Appellant] amended the writ of summons and filed 

the complaint[,] they must be stricken.

Trial Court Opinion, 3/1/2017, at 13-15 (record and case citations, internal 

quotations, and footnote omitted). 

We agree with the trial court and discern no error of law. The statute 

of limitations for survival and wrongful death actions is two years. 42 

Pa.C.S.A. § 5524. The discovery rule is not applicable to survival and 

wrongful death actions as recently reaffirmed by our Supreme Court in 

Dubose. Appellant averred that his mother died on July 28, 2013. 

Therefore, his writ of summons, dated August 10, 2016, and subsequent 

complaint, dated September 22, 2016, were filed after the two-year statute 

of limitations had already expired. There were no additional factual 

determinations necessary. Thus, as a matter of law, the trial court properly 

sustained Lizza’s preliminary objections and struck the complaint. As a 

result of this disposition, we need not address Appellant’s remaining 

contentions. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/13/2018