HomeMy WebLinkAbout2007-6633 Civil
PETER VACCARO, III : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
DAVID S. SOBOTKA, :
ESQUIRE, : CIVIL ACTION—LAW
ADMINISTRATOR OF :
THE ESTATE OF CLYDE :
D. ZEIGLER and NANCY :
DELLINGER, :
ADMINISTRATOR OF :
THE ESTATE OF SARA :
ZEIGLER, :
Defendants : No. 07-6633 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
TO PLAINTIFF’S AMENDED COMPLAINT
BEFORE HESS, OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, J., December 4, 2009.
For disposition in this civil case arising out of a motor vehicle accident are
preliminary objections to an amended complaint, based upon the initiation of the
action against decedents’ estates as opposed to personal representatives. The
matter was argued on November 25, 2009.
For the reasons stated in this opinion, the preliminary objections will be
sustained in part and denied in part.
STATEMENT OF FACTS
The present negligence action for personal injuries arises out of a two-
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vehicle accident which allegedly occurred on November 3, 2005. Plaintiff Peter
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Vaccaro, III, survived, but the alleged driver of the other car, Clyde D. Zeigler,
and his spouse, Sara Zeigler, died as a result of the accident—Mr. Zeigler on
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Plaintiff’s Amended Complaint, ¶¶5-7, filed August 20, 2009.
2
See Plaintiff’s Amended Complaint, verification, filed August 20, 2009.
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November 3, 2005, and Ms. Zeigler on November 17, 2005. An estate was
opened for Sara Zeigler in November of 2005, with one Nancy J. Dellinger being
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granted letters of administration. However, no estate was initially opened for
Clyde D. Zeigler.
The instant action was commenced by Plaintiff by praecipe for writ of
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summons on October 31, 2007. The named Defendants were “Estate of Clyde D.
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Zeigler” and “Estate of Sara Zeigler.” An estate for Clyde D. Zeigler was finally
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initiated on December 12, 2007, with one David S. Sobotka being granted letters
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of administration on November 7, 2008; however, the statute of limitations with
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respect to the accident on November 3, 2005, had run as of November 3, 2007.
A complaint was filed by Plaintiff on May 8, 2009, utilizing the caption of
the praecipe for writ of summons, but noting the existence by that time of personal
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representatives for the estates. In response to preliminary objections, Plaintiff
filed the amended complaint sub judice, which contains an amended caption
naming as Defendants “David S. Sobotka, Esquire, Administrator of the Estate of
Clyde D. Zeigler” and “Nancy Dellinger, Administrator of the Estate of Sara
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Zeigler.” Defendants’ renewed preliminary objections followed.
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Plaintiff’s Brief in Opposition to Defendants’ Preliminary Objections to Plaintiff’s Amended
Complaint at 1.
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Estate of Sara J. Zeigler, No. 21-05-1026 (Cumberland County).
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Plaintiff’s Praecipe for Summons, filed October 31, 2007.
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Plaintiff’s Praecipe for Summons.
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Petition For Citation To Compel Application for Letters Pursuant to 20 Pa.C.S. § 3155, Estate of
Clyde D. Zeigler, No. 21-07-1122
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Estate of Clyde D. Zeigler, No. 21-07-1122,
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See Act of July 9, 1976, P.L. 586, §2, as amended, 42 Pa. C.S. §5524(2) (2009 Supp.).
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Plaintiff’s Complaint, ¶¶3-4, filed May 8, 2009.
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Defendants’ Preliminary Objections, filed August 3, 2009.
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Plaintiff’s Amended Complaint.
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Defendants’ Preliminary Objections to Plaintiff’s Amended Complaint, filed September 3,
2009.
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DISCUSSION
Action against the estate of Sara Zeigler. In Estate of Gouse v. Miller &
Norford, Inc., 48 Cumberland L.J. 240, 42 Pa. D. & C.4th 408, 1999 WL 1457501
(1999), aff’d, 760 A.2d 436 (Pa. Super 2000), this court held that a civil action was
sustainable where (a) it was commenced within the statute of limitations in the
name of an existing decedent’s estate (but without reference to the personal
representative) and (b) an amended complaint was filed outside the statute of
limitations (in response to preliminary objections) in the name of the
administratrix of the estate. In so holding, the court concluded that “[t]he
amendment corrected the name of, but did not add or change, the party.” Id. at __,
42 Pa. D. & C.4th at 414, 1999 WL at 1457501. In the present case, Defendants’
counsel agreed at oral argument that this principle is applicable to the facts
surrounding the action against the estate of Sara Zeigler. Accordingly, Defendants’
preliminary objections with regard to Plaintiff’s claim as it relates to allegedly
tortious conduct of Sara Zeigler will be denied.
Action against the estate of Clyde D. Zeigler. In Nelson v. Estate of Massey,
455 Pa. Super. 71, 686 A.2d 1350 (1996), the Pennsylvania Superior Court upheld
the dismissal of a negligence complaint against an “estate,” where the statute of
limitations on the cause of action had run prior to the plaintiff’s filing of a motion
for leave to amend the complaint to name the personal representative of the
decedent’s estate as defendant. In so holding, the Court noted that “even where an
estate has not been raised and no personal representative appointed, the plaintiff’s
remedy is to secure the appointment of a personal representative by applying to
the Register of Wills for the issuance of letters testamentary or letters of
administration.” Id. at 73, 686 A.2d at 1351. The Court concluded by stating the
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general rule that “an action cannot be maintained against an estate.” Id. at 74, 686
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A.2d at 1352.
In the present case, the statute of limitations had run on Plaintiff’s claim
based upon allegedly tortious conduct of Clyde D. Zeigler prior to the opening of
an estate and prior to Plaintiff’s attempt to amend the complaint to substitute a
personal representative as a defendant. Based upon the foregoing principles, such
an amendment must be considered to have been an attempt to impermissibly add
or change a party after the statute had run.
Accordingly, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 4 day of December, 2009, upon consideration of
Defendants’ Preliminary Objections to Plaintiff’s Amended Complaint, and for the
reasons stated in the accompanying opinion, it is ordered and directed as follows:
1. Plaintiff’s claim arising out of allegedly tortious conduct
of Clyde D. Zeigler (Count I of Plaintiff’s Amended
Complaint) is dismissed; and
2. Defendants’ Preliminary Objections to Plaintiff’s
Amended Complaint are otherwise denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Michael D. Dautrich, Esq.
526 Court Street
Reading, PA 19601
Attorney for Plaintiff
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“The law is clear that all actions that survive a decedent must be brought by or against a
personal representative, duly appointed by the Register of Wills.” Finn v. Dugan, 260 Pa. Super.
367, 369, 394 A.2d 595, 596 (1978).
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Kevin D. Rauch, Esq.
Ethan K. Stone, Esq.
100 Sterling Parkway
Suite 306
Mechanicsburg, PA 17050
Attorneys for Defendants
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PETER VACCARO, III : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. :
:
DAVID S. SOBOTKA, :
ESQUIRE, : CIVIL ACTION—LAW
ADMINISTRATOR OF :
THE ESTATE OF CLYDE :
D. ZEIGLER and NANCY :
DELLINGER, :
ADMINISTRATOR OF :
THE ESTATE OF SARA :
ZEIGLER, :
Defendants : No. 07-6633 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY OBJECTIONS
TO PLAINTIFF’S AMENDED COMPLAINT
BEFORE HESS, OLER and GUIDO, JJ.
ORDER OF COURT
th
AND NOW, this 4 day of December, 2009, upon consideration of
Defendants’ Preliminary Objections to Plaintiff’s Amended Complaint, and for the
reasons stated in the accompanying opinion, it is ordered and directed as follows:
1. Plaintiff’s claim arising out of allegedly tortious conduct
of Clyde D. Zeigler (Count I of Plaintiff’s Amended
Complaint) is dismissed; and
2. Defendants’ Preliminary Objections to Plaintiff’s
Amended Complaint are otherwise denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
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Michael D. Dautrich, Esq.
526 Court Street
Reading, PA 19601
Attorney for Plaintiff
Kevin D. Rauch, Esq.
Ethan K. Stone, Esq.
100 Sterling Parkway
Suite 306
Mechanicsburg, PA 17050
Attorneys for Defendants