J-A20039-22

2023 PA SUPER 45

DENIA EDWARDS, PERSONAL 

REPRESENTATIVE OF THE ESTATE OF 

DOUGLAS A. EDWARDS,

IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellee

v.

NORFOLK SOUTHERN RAILWAY 

COMPANY,

Appellant No. 826 EDA 2021

Appeal from the Order Entered November 2, 2020

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): 181003685

BEFORE: STABILE, J., MCCAFFERY, J. AND PELLEGRINI, J.*

DISSENTING OPINION BY STABILE, J. FILED MARCH 21, 2023

I respectfully dissent. When a plaintiff files a complaint or writ of 

summons on behalf of an estate within the applicable statute of limitations

but has not yet been appointed as personal representative to do so, the action 

is considered a legal nullity, unless the plaintiff petitions within the statute of 

limitations for appointment as the personal representative of the estate1 and 

the appointment is substantially assured. See Estate of Gasbarini v. 

Medical Ctr. of Beaver Cnty., 409 A.2d 343 (Pa. 1979); D'Orazio v. Locust 

Lake Vill., Inc., 406 A.2d 550 (Pa. Super. 1979); McGuire v. Erie 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 See 20 Pa.C.S.A. § 3153 (prescribing contents of petition for grant of letters 

testamentary when decedent dies testate or for grant of letters of 

administration when decedent dies intestate).
J-A20039-22

- 2 -

Lackawanna Ry. Co., 385 A.2d 466 (Pa. Super. 1978). The failure to both 

file the suit and petition for appointment as personal representative within the

statute of limitations is fatal to the action. In the present case, Edwards 

fulfilled the first condition by filing a complaint prior to expiration of the statute 

identifying herself as personal representative of her late husband’s estate. 

She failed, however, to satisfy the second condition by neglecting to file a 

petition for appointment as personal representative before the statute 

expired. As a result, the relation back doctrine does not rescue Edwards’ 

action, and the civil action she filed was a legal nullity. The trial court erred 

by denying Norfolk Southern’s motion for summary judgment. 

It is well-settled that “a dead man cannot be party to an action, and any 

such attempted proceeding is completely void and of no effect.” Prevish v. 

Northwest Medical Center Oil City Campus, 692 A.2d 192, 201 (Pa. Super. 

1997) (en banc). All actions that survive a decedent must be brought by or 

against the personal representative of the estate. Marzella v. King, 389 A.2d 

659, 660-61 (Pa. Super. 1978). An action brought by or against an estate 

lacking a personal representative is void. Prevish, 692 A.2d at 201. 

In limited circumstances, however, courts have applied an exception 

called the “relation back doctrine” to validate the acts of the personal 

representative which precede the date of her official appointment. Relation 

back applies when, before the statute of limitations expires, the plaintiff 

petitions for appointment as personal representative of the decedent’s estate 

and files an action identifying herself as personal representative. McGuire, 
J-A20039-22

- 3 -

385 A.2d at 468. Relation back applies even though the personal 

representative’s appointment is not finalized, because her timely petition 

“substantially assure[s]” her appointment as personal representative. Id.

Here, Edwards filed a complaint within the statute of limitations 

purporting to identify herself as personal representative, but she failed to 

petition for appointment as personal representative before the statute 

expired. She waited two months after the statute expired before moving for 

appointment as personal representative. Nevertheless, the majority insists 

that relation back applies to the present case based on its study of Gasbarini, 

D’Orazio, McGuire, Prevish, and a Commonwealth Court decision, WilkesBarre Gen. Hospital v. Lesho, 435 A.2d 1340 (Pa. Cmwlth. 1981). See 

Majority Op. at 16-23 (discussion section). I am constrained to disagree with 

the majority’s construction of these decisions.

In my view, the majority’s decision runs afoul of the decision by our 

Supreme Court in Gasbarini and our own decisions in D’Orazio and 

McGuire. In each of these cases, the plaintiff filed a complaint or writ of 

summons within the statute of limitations that identified the plaintiff as the 

administrator of the decedent’s estate. The plaintiff applied for letters of 

administration before the statute expired, but letters were not issued until 

after the statute expired due to the plaintiff’s failure to post or execute a bond. 

All three decisions held that relation back applied because the plaintiff timely 

initiated the lawsuit and filed for letters before the statute expired.
J-A20039-22

- 4 -

The Supreme Court held in Gasbarini that relation back applied 

because the plaintiff timely filed a civil action and applied for letters within 

the statutory period. Only because the plaintiff satisfied both factors did the 

Court decide that her appointment as administrator was “substantially 

assured” at the time she filed her action. Id., 409 A.2d at 346. This Court’s 

earlier decision in McGuire was cited at length in Gasbarini. Indeed, our 

Supreme Court held that “the instant case [Gasbarini] is on all fours with 

McGuire and . . . [McGuire’s] reasoning is persuasive.” Id. D’Orazio is 

congruent with Gasbarini as well, particularly wherein we stated:

Although [D’Orazio] was finally granted letters much longer after 

the statute’s running than was Mr. McGuire, this fact does not alter 

our disposition. The crucial factors are that letters had been 

requested and the action commenced within the statutory 

period, and appellant’s appointment as administratrix, under the 

circumstances of this case, “was substantially assured at the time 

the complaint was filed, ... within the statutory period of 

limitations.

Id., 406 A.2d at 552 (emphasis added).

2

Under Gasbarini, McGuire, and D’Orazio, relation back does not apply 

due to Edwards’ failure to satisfy the “crucial” requisite of petitioning for 

appointment as personal representative during the limitations period. The 

majority attempts to downplay the “crucial factors” passage by stating:

In [D’Orazio], the plaintiff mother did not obtain the letters of 

administration until about a year-and-a-half after the statute had 

run, which was substantially longer than the delay in McGuire. 

____________________________________________

2

I refer to this passage below as the “crucial factors passage” or “the 

passage.”
J-A20039-22

- 5 -

Thus, read in context, the D’Orazio court’s statement that it was 

“crucial” that the plaintiff request the letters before the statute 

had run was meant to answer the concern that the plaintiff mother 

was not granted the letters until “much longer after the statute’s 

running than [the plaintiff in McGuire.]”

Majority Op. at 21. This passage does more than address the concern that 

the plaintiff was not granted letters until much later than the plaintiff in 

McGuire. It demonstrates what is and what is not “crucial” for the relation 

back doctrine to apply. It teaches that relation back does not depend on 

whether letters are granted immediately after the statute expires or 

substantially after the statute expires. Instead, the only factors that matter 

for relation back—the “crucial factors”—are whether the plaintiff commences

the action before the statute and requests letters before the statute expires. 

If the plaintiff satisfies both factors, as the plaintiff did in D’Orazio (and in

Gasbarini and McGuire), relation back applies. If the plaintiff fails one of 

these factors, as Edwards did here, or both factors, relation back does not 

apply. 

The majority also relies heavily on Lesho, which held that relation back 

applied even though the personal representative failed to petition for 

appointment as personal representative prior to the statute of limitations. As 

a Commonwealth Court opinion, Lesho is not binding on this Court but is at 

most persuasive authority, a point the majority concedes. Majority Op. at 21 

n.7. In my view, Lesho reached the right result but for the wrong reason. 

The reason given flies in the face of Gasbarini, McGuire and D’Orazio. 
J-A20039-22

- 6 -

In Lesho, a wrongful death action, two months after the decedent died, 

her parents filed a petition in the Orphans' Court to settle her estate under 

Section 3102 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 

3102. The petition was granted. Subsequently, the plaintiffs filed a timely 

complaint in the Arbitration Panels for Health Care identifying themselves as 

administrators of the decedent’s estate. The plaintiffs neither applied for nor 

were granted letters of administration until after the statute of limitations had 

run. Nevertheless, the Commonwealth Court held that relation back applied, 

stating:

Absolutely nothing was changed in the [plaintiffs’] complaint by 

virtue of letters of administration having been granted to them 

after the statute of limitations had run. From the time the original 

complaint was filed, the [defendants] were aware that they were 

being sued for their alleged negligence resulting in the death of a 

named decedent. Every element necessary to establish the two 

causes of action against the [defendants] was set forth in the

complaint, including the erroneous fact that the [plaintiffs] had 

been appointed administrators of their daughter’s estate.

Id., 435 A.2d at 1343. This passage is unpersuasive because it conflicts with

Gasbarini, McGuire and D’Orazio, which all drive home that the 

appointment of the personal representative—and his right to prosecute an 

action on behalf of the estate—is not substantially assured unless she petitions 

for appointment as personal representative before the statute of limitations 

expires. When the plaintiff fails to take this step before the statute expires, 

there is no guarantee that she will ever take this step. The majority endorses

Lesho’s passage, reasoning that relation back applies when the plaintiff fails 
J-A20039-22

- 7 -

to petition for letters during the limitation period so long as the defendant is 

notified of the action before the statute expires. Majority Op. at 15, 22-23. 

The majority goes on to say that Edwards placed Norfolk Southern on notice 

of her action, and satisfied the relation back doctrine, by filing the complaint 

during the limitation period. Under Gasbarini, McGuire and D’Orazio, 

however, it is entirely irrelevant whether the defendant is notified of the action

during the limitation period. The focus of these decisions is what the plaintiff 

does, not what the defendant learns, before the statute expires. Since 

Edwards failed to petition for letters before the statute expired, her action is

a legal nullity, regardless of whether Norfolk Southern was notified of the 

action during the limitation period.

In my view, a better reason existed for applying relation back in Lesho. 

Long before the statute expired in Lesho, the decedent’s parents filed a 

petition in the Orphans' Court to settle their daughter's estate under 20 

Pa.C.S.A. § 3102, which petition was granted. Section 3102, pertaining to 

small estates, provides in part that when any person dies domiciled in the 

Commonwealth owning property of a gross value not exceeding $50,000

(excluding certain real estate and other payments), upon petition of any party 

in interest, the court has the discretion, whether or not letters have been 

issued or a will probated, to direct distribution of the property to the entitled 

parties. The decree of distribution constitutes sufficient authority to the world 

that the persons named therein are entitled to distribution without 
J-A20039-22

- 8 -

administration, and it has the same effect as a decree of distribution after an 

accounting by a personal representative. Essentially, Section 3102 treats 

successful petitioners as having received letters of administration without 

formally applying for them. Thus, in Lesho, I believe the better reason for 

applying relation back was because the decedent’s parents petitioned for their 

daughter’s small estate distribution before the statute of limitations expired. 

This rationale is consistent with Gasbarini, McGuire and D’Orazio, because 

like the plaintiffs in these cases, the decedent’s parents took sufficient action 

before the statute of limitations to substantially assure that an estate would 

be raised. Lesho itself suggests this rationale in dicta wherein it was stated, 

“[i]t is possible that the [parents] really thought they were the administrators 

of their daughter’s estate because of their previous petition and proceeding 

before the Orphans’ Court. . .” Id. at 1343.

The last case relied upon by the majority, Prevish, does not address 

the issue presently before us. There, several days before the statute of 

limitations expired, the plaintiff filed a writ of summons that identified the 

plaintiff as “Estate of Judith A. Bills, Deceased.” The writ failed to identify the 

plaintiff as the executor of the estate. As such, the writ was a nullity, because 

actions cannot be brought by dead men or by estates lacking a personal 

representative. Id., 692 A.2d at 201. After the statute expired, the plaintiff 

filed a complaint identifying himself as the executor of the estate. The record 

was “unclear” as to when the plaintiff applied for letters testamentary or when 
J-A20039-22

- 9 -

they were issued. Id. at 205 n.2 (Schiller, J., concurring).3 The Court held

that relation back did not apply because the only document filed before the 

statute expired, the writ of summons, was a nullity that failed to identify the 

executor or notify the defendants that there was, even potentially, an 

executor. Id. at 204. This omission created “the sort of instability that 

statutes of limitation seek to preclude.” Id. at 205.

The issue in Prevish is different than the issue in the present case. The 

issue before us is whether relation back applies due to Edwards’ failure to 

apply for appointment as personal representative within the statute of 

limitations. The issue in Prevish was whether relation back applied under

different circumstances, namely when a timely filed writ of summons failed to 

identify the plaintiff as personal representative of the estate. All that Prevish 

said about the issue before us was that the record was “unclear” when the 

plaintiff moved for letters testamentary. Id. at 205 n.2. Because Prevish 

does not speak to the issue that concerns us, I believe the majority’s reliance 

upon Prevish is misplaced.

None of the cases relied upon by the majority support the application of 

relation back to this action. Edwards was not the personal representative of 

the estate at the time she filed this action, and she failed to cure this defect 

by filing a petition within the statute of limitations for appointment as personal 

____________________________________________

3 The majority opinion in Prevish was silent on when the plaintiff applied for 

or obtained letters. 
J-A20039-22

- 10 -

representative. Thus, her action is a legal nullity and is not rescued by the 

relation back doctrine. Relation back does not cure the lack of a personal 

representative—the defect that otherwise renders the action a nullity—unless

the plaintiff takes a sufficient step during the limitations period to ensure that 

an estate is raised. When, as here, the plaintiff fails to take any step to raise 

an estate until after the statute of limitation expires, relation back cannot be 

used to breathe life back into the plaintiff’s lawsuit. 

Since relation back doctrine does not apply to this case, the trial court 

should have granted summary judgment to Norfolk Southern. I respectfully 

submit that the proper course of action is to reverse the trial court’s order 

denying summary judgment to Norfolk Southern and remand with instructions 

to enter summary judgment in its favor.