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HomeMy WebLinkAbout2008-81 Civil THE ESTATE OF MARY ARLEDGE, : IN THE COURT OF COMMON PLEAS OF BY EXECUTORS HENRY ARLEDGE, : CUMBERLAND COUNTY, PENNSYLVANIA HUSBAND, AND ANITA ARLEDGE, : DAUGHTER, AND HENRY ARLEDGE : AND ANITA ARLEDGE INDIVIDUALLY : IN THEIR OWN RIGHT, : PLAINTIFFS : : V. : : SELECT MEDICAL CORPORATION, : THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: : STATE BOARD OF NURSING AND : THE DIVISION OF HEALTH : MONITORING PROGRAMS AND : UNIT 1: VOLUNTARY RECOVERY : PROGRAM, : DEFENDANTS : 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF SELECT MEDICAL CORPORATION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., July 10, 2008:-- January 7, 2008 On , a writ of summons was filed with the following caption: “The Estate of Mary A. Arledge, by executors Henry Arledge, Husband, and Anita Arledge, Daughter, and Henry Arledge and Anita Arledge Individually in their Own February 12, 2008 Right.” On , plaintiffs filed a complaint with the same caption. The only averments in the complaint as to the identity of the plaintiffs are: 1. Mary Arledge is a deceased person who at the time in question was employed by the defendant hospital as a registered nurse (RN). 2. Plaintiff Henry Arledge is the widower of Mary Arledge and is 08-0081 CIVIL TERM suing on behalf of the estate and in his own right. 3. Anita Arledge is the daughter of Mary Arledge and is suing on behalf of the estate and in her own right. March 3, 2008 On , Select Medical Corporation filed preliminary objection to the complaint seeking to dismiss Counts I, II, III and IV as brought by the wrong party. No March 26, 2008 estate of Mary A. Arledge was opened until , when Henry A. Arledge May 22, was granted letters of administration as Mary A. Arledge died intestate. On 2008 , plaintiffs filed a petition to amend their complaint to name as a plaintiff Henry A. Arledge as the personal representative of the estate. A Rule To Show Cause was July 1, 2008 issued and a hearing was conducted on . At the hearing, plaintiffs stipulated that a two year statute of limitations had run. Therefore, as discussed in an opinion previously filed on Select Medical’s preliminary objection on April 30, 2008, plaintiffs’ motion to amend their complaint to add a new party was denied. In an order of April 30, 2008, disposition was deferred on the motion of Select Medical Corporation to dismiss Counts I, II and III of plaintiffs’ complaint pending a determination of whether 1 the complaint could be amended. Because plaintiffs cannot amend their complaint, we must now decide whether Select Medical’s preliminary objection should be granted. Notwithstanding that a decedent’s estate cannot be a party to litigation unless a personal representative exists, plaintiffs maintain that because Henry A. Arledge was appointed administrator of the estate of Mary A. Arledge on March 26, 2008, the relation back doctrine cures the defect. The relation back doctrine was extensively __________ 1 The order of April 30, 2008, dismissed Count IV of plaintiffs’ complaint on other -2- 08-0081 CIVIL TERM grounds. -3- 08-0081 CIVIL TERM Prevish v. Northwest Medical Center – Oil City Campus, reviewed in 692 A.2d 192 (Pa. Super. 1997), in which the Superior Court of Pennsylvania analyzed the following Estate of Gasbarini v. Medical Center of Beaver County, Inc., cases: 487 Pa. 266 D’Orazio v. Locust Lake Village, Inc., Marzella v. (1979); 267 Pa. Super. 124 (1979); King, McGuire v. Erie Lackawanna Railway Company, 256 Pa. Super. 179 (1978); Lovejoy v. Georgeff, 253 Pa. Super. 531 (1978); 224 Pa. Super. 206 (1973); and Wilkes-Barre General Hospital v. Lesho, Prevish 62 Pa. Commw. 222 (1981). In , the Superior Court stated: “Simply stated, the doctrine of relation back as applied to cases where an estate is a party means that the courts under certain circumstances will validate the acts of the personal representative of the estate which preceded the date of his official appointment.” Lesho, 62 Pa.Commw. at 225, 435 A.2d at 1342. Thus, where a plaintiff, acting as the personal representative of an estate, initiates an action before the statute of limitations has run, but also before his or her appointment as personal representative has been finalized, the doctrine of relation back may be applied in appropriate circumstances to validate the filing of the action, even though the plaintiff’s appointment is not finalized until after the limitations period has expired. Gasbarini, supra; McGuire, supra; D’Orazio, supra; Lesho, supra. . . . In McGuire, the earliest of the cases, the plaintiff petitioned to be appointed administrator of the estate of his teenage daughter, who had died of injuries sustained when she was struck at a railroad crossing by an Erie Lackawanna freight train. Although the plaintiff paid the filing fee, he was not issued letters of administration because he had not posted bond. On the day before the limitations period expired, the plaintiff commenced a survival action by filing a complaint in which he averred that he was the administrator of his daughter’s estate. It was not until three weeks later, however, that the plaintiff posted the necessary bond and was issued letters of administration. The defendant railroad asserted a statute of limitations defense in its answer and new matter and in a motion for summary judgment. The trial court denied summary judgment and certified its order to the Superior Court as involving a controlling question of law. -4- 08-0081 CIVIL TERM The Superior Court held that the plaintiff’s actions had been sufficient to fulfill the purposes of the statute of limitations (namely, “to expedite litigation and thus to discourage delay and the presentation of stale claims[,]” id., 253 Pa.Super. at 535, 385 A.2d at 468), within the statutory period. When the complaint was filed, it represented a timely statement of every element of the claim, except in one respect: the plaintiff appellee had not been formally named administrator. That deficiency, however, was minimal. At the time the complaint was filed, that is, within the statutory period, appellee had applied for letters of administration. . . .Appellee’s appointment as administrator was substantially assured at the time the complaint was filed, that is, within the statutory period of limitations. Id., 253 Pa.Super. at 535-36, 385 A.2d at 468. The Superior Court contrasted the case before it with the earlier case of Lovejoy, supra, in which a plaintiff had timely filed a writ of summons on behalf of his injured son against the father of a deceased driver as “administrator” of the driver’s estate. Although the plaintiff had applied for the issuance of letters of administration for the estate, letters had not yet been issued when the plaintiff filed the writ of summons; it was not until after the statute of limitations had run that the decedent’s father was appointed administrator. The McGuire court noted that in Lovejoy, 6 when the [writ of summons] was filed, the identity of the administrator was uncertain; either parent could have renounced the right to letters and the other accepted, or both could have renounced…. Thus it was quite possible that the [writ of summons] had identified as a party someone who was not, and would not become, a party, so that the [writ of summons] might have been served on the wrong person entirely. McGuire, 253 Pa.Super. at 537, 385 A.2d at 469 (footnote omitted). The McGuire court reasoned that it was such instability which proved fatal to application of the relation back doctrine in Lovejoy. In McGuire, by contrast, the defendant railroad could “proceed on the presumption that” appellee’s appointment as plaintiff-administrator would be completed. Given this fact, the relationship between the parties was not affected with the sort of instability that statutes of limitations seek to preclude. 6 In its discussion of Lovejoy, the McGuire court indicates that it was a complaint which was filed prior to the expiration of the limitations period. In fact, it was a writ of summons; a complaint was filed later. -5- 08-0081 CIVIL TERM -6- 08-0081 CIVIL TERM Id., 253 Pa.Super. at 536, 385 A.2d at 468-69, quoting Beckman v. Owens, 135 Pa.Super. 404, 408, 5 A.2d 626, 627 (1939). Accordingly, the Superior Court applied the doctrine of relation back “so that the action of appellee in instituting this suit within the limitation period but prior to his appointment may be validated by his appointment after the period.” Id., 253 Pa.Super. at 533-34, 385 A.2d at 467. The Superior Court reached the same result on similar facts in D’Orazio, supra. That case arose from the drowning death on July 8, 1973, of a nine-year-old child in a lake on the defendants’ property. On June 11, 1974, a writ of summons was issued in the name of the child’s mother, “Theresa D’Orazio, Trustee, ad litem,” as plaintiff. The plaintiff- mother filed a petition for letters of administration one month later. On October 24, 1974, she filed a complaint naming herself, “Administratrix of the Estate of Patrick L. Lawler, Deceased,” as plaintiff. Because she had obtained the required bond and paid bond premiums for several years, the plaintiff assumed that letters of administration had been issued to her. Unbeknownst to her, however, letters had not been issued because she had failed to execute the bond. The plaintiff’s counsel eventually learned of the omission, the plaintiff signed the bond on January 11, 1977, and letters of administration were issued to her. The defendants raised a statute of limitations defense, and the trial court, refusing to apply the relation back doctrine, granted the defendants’ motion for summary judgment. On appeal, the Superior Court concluded that the case was controlled by McGuire, supra. Although appellant here 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., 267 Pa.Super. at 129, 406 A.2d at 552, quoting McGuire, 253 Pa.Super. at 535, 385 A.2d at 468. Accordingly, the Superior Court, applying the doctrine of relation back, reversed the order of summary judgment and remanded for further proceedings. The Supreme Court addressed the relation back doctrine in Gasbarini, supra. The decedent in that case had died on June 26, 1973, while a patient in the defendant hospital under the care of the defendant physicians. His widow promptly applied for letters of administration but was not issued them because her counsel failed to post bond. On -7- 08-0081 CIVIL TERM September 26, 1973, counsel commenced an action in trespass by writ of summons identifying the plaintiff as “Estate of Gabriel C. Gasbarini.” When counsel failed to respond to the defendant hospital’s rule to file a complaint, a judgment of non pros was entered. Counsel filed a second summons on June 20, 1974, again naming the estate as plaintiff. This was followed on November 15, 1974, by a complaint which named the estate as plaintiff in the caption and which asserted wrongful death and survival actions. The defendants filed preliminary objections alleging that the estate was not a proper party. Counsel did not respond to the preliminary objections; he was subsequently suspended from the practice of law and then disbarred. On January 31, 1975, the trial court sustained the preliminary objections and dismissed the complaint. In July 1975 the plaintiff was able to secure new counsel. She posted bond, was named administratrix of the estate, and petitioned to reinstate the complaint and to amend its caption. On January 29, 1976, the trial court ordered that its judgment in favor of the defendants be opened and that the plaintiff be granted leave to file an amended complaint. The Superior Court reversed the trial court, and the plaintiff appealed to the Supreme Court. With regard to the defendants’ argument that permitting the plaintiff to amend the complaint would improperly add a new party to the proceedings, the Supreme Court reasoned as follows: In the instant case, appellant had taken all necessary steps to be appointed administratrix of decedent’s estate except posting the required bond, and this omission was clearly the fault of [counsel]. Further, paragraph 9 of the complaint in trespass alleged: “Plaintiff is the widow and was duly appointed administratrix of [the decedent’s] estate by the Register of Wills of Beaver County, Pennsylvania. . . .” It is clear that allowing amendment of the caption in no way adds a new party to the suit. Id., 487 Pa. at 271-72, 409 A.2d at 346 (citation omitted). The Court also found no merit in the defendants’ argument that amendment of the complaint would deprive them of a meritorious statute of limitations defense. The original complaint . . . made clear that the action was based upon our wrongful death and survival statutes. Further, as previously mentioned, the complaint made clear that appellant was bringing this action in her capacity as administratrix of the decedent’s estate. * * * -8- 08-0081 CIVIL TERM We believe the instant case is on all fours with McGuire and we believe its reasoning is persuasive. Instantly, the only deficiency in appellant’s complaint was the fact she had not yet been named administratrix of decedent’s estate. All other requirements, however, had been completed within a short time period after decedent’s death and within the applicable statute of limitations for either a wrongful death or survivor action. As we believe the appointment of appellant as administratrix should relate back to the . . . date on which the complaint was filed, we find that neither action is barred by the applicable statute of limitations. Id., 487 Pa. at 272-73, 409 A.2d at 346-47. Accordingly, the Supreme Court reversed the order of the Superior Court and reinstated the order of the trial court. In Lesho, supra, the relation back issue arose in the context of proceedings before the Arbitration Panels for Health Care. The plaintiffs, whose daughter had died allegedly as the result of medical malpractice, filed a complaint identifying themselves in the caption and body of the complaint as administrators of the decedent’s estate. In fact, however, they did not apply for and were not granted letters of administration until after the statute of limitations had expired. The defendants moved for summary judgment on that basis. Their motion was denied by the Administrator of the Arbitration Panels for Health Care, who ruled that the relation back doctrine applied. His order was certified as involving a controlling question of law, and the Commonwealth Court allowed the defendants to take an interlocutory appeal from that order. On appeal, the defendants argued that there was a critical difference between McGuire and its progeny and the case in which they were involved: “in each of those cases the administrator had at least applied for letters before the statute ran and there was a substantial assurance that the letters would be granted to the person alleging his or her fiduciary capacity in the pleading.” Id., 62 Pa.Commw. at 226, 435 A.2d at 1342 (emphasis supplied in original). Nevertheless, the Commonwealth Court affirmed, concluding that the reasoning of McGuire 7 and Gasbarini was applicable to the case before it. Absolutely nothing was changed in the Leshos’ 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 Petitioners 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 -9- 08-0081 CIVIL TERM 7 The decisions of the Commonwealth Court are not binding upon us. Johnson v. Singleton, 442 Pa.Super. 206, 658 A.2d 1372 (1995). We may consider them for their persuasive value, however. causes of action [wrongful death and survival] against the Petitioners was set forth in the complaint, including the erroneous fact that the Leshos had been appointed administrators of their daughter’s estate. . . . At the very least, the fact that both parents had been petitioners in that proceeding would discount the possibility of a renunciation by one of them, such as occurred in Lovejoy, supra. In any event, it is our opinion that by permitting the doctrine to apply to the circumstances of this case, the acts of the administrators will have been validated, a just result will have been achieved, the estate will have been benefited and a remedy will not have been lost. Neither will the objectives of the statue of limitations have been disturbed. Id., 62 Pa.Commw. at 228, 435 A.2d at 1343. Prevish In , on September 8, 1994, a writ of summons was issued in which plaintiff was identified as “Estate of Judith A. Bills, Deceased.” On November 18, 1994, plaintiff filed a complaint alleging a cause of action under the Survival Act, 42 Pa.C.S. Section 8302, which was captioned: “Thomas D. Prevish, Executor of the Estate of Judith A. Bills, Deceased.” Plaintiff averred that he had been appointed executor on November 15, 1994. A defendant filed a motion to strike the complaint because the suit was commenced in the name of the estate of the decedent rather than the name of the personal representative, and because the statute of limitations had run, the defect could not be amended by naming a new party. The trial court rejected plaintiff’s argument that the relation back doctrine applied and the complaint was stricken. On appeal, the Superior Court affirmed, stating: The writ of summons was the only document filed before the limitations period expired, and its caption identifies the estate of the decedent as the -10- 08-0081 CIVIL TERM plaintiff. Such a writ is, of course, a nullity. Moreover, the writ does not identify the executor of the estate, nor does it inform the defendants that there is, even potentially, an executor (that is, that the decedent died testate). Concerning the parties’ relationship, these facts evidence “the sort of instability that statutes of limitation seek to preclude.” McGuire, supra. Appellant has cited no case, and we are aware of none, in which the relation back doctrine was applied to ratify, post-appointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleading that he filed. We decline to extend the doctrine to encompass such a situation. Accordingly, we affirm the trial court’s order dismissing the complaint. sub judice: In the case 1. The writ of summons wrongly identifies the plaintiffs as “The Estate of Mary Arledge by Executors Henry Arledge husband, and Anita Arledge daughter,” because no estate had been opened. 2. Henry Arledge and Anita Arledge could not be the executors of the estate of Mary Arledge because Mary Arledge died intestate. 3. While the complaint contained the same caption as the writ of summons, it only identifies Henry Arledge and Anita Arledge as “suing on behalf of the estate,” which they could not do because no estate had been opened. 4. When an estate was opened after the complaint was filed Henry Arledge was appointed the administrator of the estate of Mary Arledge. 5. Anita Arledge has never been a personal representative of the estate of Mary Arledge. Accordingly, in the writ of summons and the complaint Henry Arledge and Anita Arledge were wrongly identified as the executors of the estate of Mary Arledge, and in -11- 08-0081 CIVIL TERM the body of the complaint they were wrongly identified as suing on behalf of the estate. Neither the writ nor the complaint informs defendants of the possibility of there being an administrator of the estate nor of the identity of any administrator. As set forth in Prevish, the relation back doctrine has not been applied to ratify, post-appointment, the attempted commencement of an action by a personal representative whose existence was in no way suggested by the pleadings that were filed. Plaintiffs suggest that Lesho Lesho McGuireD’Orazio is applicable. as well as and involved survival actions which were commenced by the filing of a complaint which identified the plaintiff Gasbarini, in the caption by name as the administrator of the decedent’s estate. In a survival action was commenced by the filing of a complaint the caption of which named the decedent’s estate as the plaintiff, but the body of which explained that the plaintiff was in fact the administratrix of the estate. While the relation back doctrine applied in LovejoyPrevish those cases, and control the resolution of this case where the relation back doctrine is not applicable. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of July, 2008, the preliminary objection of defendant, Select IS GRANTED. Medical Corporation to Counts I, II and III of plaintiffs’ complaint, Counts I, II ARE DISMISSED. and III, By the Court, Edgar B. Bayley, J. -12- 08-0081 CIVIL TERM -13- 08-0081 CIVIL TERM Renee Knicos, Esquire 301 South Hanover Street, Suite 1 Carlisle, PA 17013 For Plaintiffs Marc A. Moyer, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Select Medical Corporation Jay W. Stark, Esquire Office of Attorney General th 15 Floor Strawberry Square Harrisburg, PA 17120 For Commonwealth of Pennsylvania :sal -14- THE ESTATE OF MARY ARLEDGE, : IN THE COURT OF COMMON PLEAS OF BY EXECUTORS HENRY ARLEDGE, : CUMBERLAND COUNTY, PENNSYLVANIA HUSBAND, AND ANITA ARLEDGE, : DAUGHTER, AND HENRY ARLEDGE : AND ANITA ARLEDGE INDIVIDUALLY : IN THEIR OWN RIGHT, : PLAINTIFFS : : V. : : SELECT MEDICAL CORPORATION, : THE COMMONWEALTH OF : PENNSYLVANIA, DEPARTMENT OF : STATE, BUREAU OF PROFESSIONAL : AND OCCUPATIONAL AFFAIRS: : STATE BOARD OF NURSING AND : THE DIVISION OF HEALTH : MONITORING PROGRAMS AND : UNIT 1: VOLUNTARY RECOVERY : PROGRAM, : DEFENDANTS : 08-0081 CIVIL TERM IN RE: PRELIMINARY OBJECTION OF SELECT MEDICAL CORPORATION TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of July, 2008, the preliminary objection of defendant, Select IS GRANTED. Medical Corporation to Counts I, II and III of plaintiffs’ complaint, Counts I, II ARE DISMISSED. and III, By the Court, Edgar B. Bayley, J. 08-0081 CIVIL TERM Renee Knicos, Esquire 301 South Hanover Street, Suite 1 Carlisle, PA 17013 For Plaintiffs Marc A. Moyer, Esquire 305 North Front Street P.O. Box 999 Harrisburg, PA 17108 For Select Medical Corporation Jay W. Stark, Esquire Office of Attorney General th 15 Floor Strawberry Square Harrisburg, PA 17120 For Commonwealth of Pennsylvania :sal -2-