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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. FI LED MARCH 21, 2023 I respectfully dissent. W hen 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 limitati ons for appointment as the personal representative of the estate 1 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

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Lackawanna Ry. Co. , 385 A.2d 466 (Pa. Super. 1978)

. The failure to both file the suit and petition for appointment as personal representative with in 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, h owever, 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 l egal nullity. T he 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 ). A ll 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 h er official appointment. R elation back applies when, before the statute of limitations expires, the plaintiff petitions for appointment as personal repr esentative of the decedent’s estate and files an action identifying herself as personal representative. McGuire ,J

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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 appoint ment as personal representative before the statute expired

. She waited two months after the statute expired before moving for appointment as personal representative. Nevertheless, t he majority insists that relation back applies to the present case based on its study of Gasbarini , D’Orazio , McGuire , Prevish , a nd a Commonwealth Court decision , Wilkes Barre Gen. Hospital v. Lesho , 435 A.2d 1340 (Pa. Cmwlth. 1981). See Majo rity 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 case s , t he 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. T he plaintiff applied for letters of administration before the statute expired , but letters we re not issued until after the statute expired due to the plaintiff’s failure to post or execute a bond.
A ll three decisions held that relation back applied because the plaintiff timely initiated the lawsuit and filed for letters before the statute expired.J

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The Supreme Court held in Gasbarini t hat 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 d ecide that her appointment as administrator was “substantially assured” at the time she filed her action. Id. , 409 A.2d at 346

. T his 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. T he crucial factors are that letters had been requested and the action commenced within the statutory period , and appella nt ’ 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

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- a - half after the statute had run, which was substantially longer than the delay in McGuire

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_________________ __________ ______ ____ _______ 2 I refer to this passage below as the “crucial factors passage” or “t he passage.”J

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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 t he statute’s running than [the plaintiff in McGuire .] ” Majority Op. at 21. T his passage d oes more than address the concern that the plaintiff was not granted letters until much later than the plaintiff in McGuire. It d emonstrates what is and what is not “crucial” for the relation back doctrine to apply. I t 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 commence s 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 applie d 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

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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 file d a timely complaint in the Arbitration P anels 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, t he Commonwealth Court he ld 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. Th is passage is un persuasive because it conflicts with Gasbarini , McGuire and D’Orazio , which all drive ho me 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 limi tations 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 failsJ

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to petition for letters du ring 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. U nder 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 decision s 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 Sout hern was notified of the action during the limitation period.
I n my view, a better reason exist ed for applying relation back in Lesho

. L ong 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 w hen any person dies domiciled in the Commonwealth owning prop erty 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 constitute s sufficient authority to the world that the persons named therein are entitled to distribution withoutJ

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administration , and it has the same effect as a decree of distribution after an accounting by a personal representative. Essentially, Section 3102 treats successful petitioner s as having received letters of administration without formally apply ing for them

. Th us , in Lesho , I believe the better reason for applyi ng relation back was because the decedent’s parents petition ed 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 to ok sufficient action before the statute of limitations to substantially assure that an estate would be raised. Lesho itself su ggests 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 b y the majority, Prevish , does not ad dress 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 person al 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 whenJ

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they were i ssued. 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 tha n t he issue in the present case. The
issue before us is whether relation back applies due to Edwards ’ failure to appl y for appointment as personal representative within the statute of limitations. T he 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 wa s that the record was “unclear” when the plainti ff 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 t he cases r elied 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 th e statute of limitations fo r appointment as personal

_________________ __________ ______ ____ _______ 3 The majority opinion in Prevish was silent on when the plaintiff applied for or obtained letters

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representative

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

r elation back doctrine. Relation back does not cure the lack of a personal representative

— the defect that otherwise render s the action a nullity

— unless the plaintiff takes a sufficient step during the limitations period to ensure that an estate is raised

. W hen , as here, the plaintiff fail s to take any step to raise
an estate until after the statute of limitation expire s , rela tion 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

.