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HomeMy WebLinkAbout2003-2001 Civil CL YDE KING and THERESE KING IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. AAA CENTRAL PENN, AAA CENTRAL PENN AUTOMOBILE CLUB, ALICE & BETTY ADLER NO. 2003-2001 CIVIL TERM v. BRIAN WELLER CIVIL ACTION - LAW IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS ALICE ADLER AND BETTY ADLER BEFORE GUIDO. J. OPINION AND ORDER OF COURT Defendants Alice Adler and Betty Adler are deceased. Currently before us are their preliminary objections to Plaintiffs' Amended Complaint. Their primary objection is that they were not properly served. They also contend that the statute of limitations preclude the joinder of their respective estates and requires the dismissal of the amended complaint. Plaintiffs argue that they did everything possible to effectuate timely and proper service. They further contend that since the original action was timely filed, the statute of limitations should not prohibit the amending of their complaint to add the executors of the respective estates. For the reasons hereinafter set forth we are constrained to dismiss this action as to the Adlers and their estates. The procedural and factual background to this case can be described as complicated at best. We will simplify it by relating only the factors central to our decision. 1 On April 27, 2001 Plaintiff Clyde King suffered injuries in a fall at the offices of Defendant AAA Central Penn.2 Defendants Alice Adler and Betty Adler were the record owners of that property? Settlement negotiations ensued between plaintiffs' counsel and Defendant AAA Central Penn's insurance carrier. 4 As the statute oflimitations approached, plaintiffs realized that a settlement would not be reached.5 On Monday, April 28, 2003 the instant action was commenced by writ of summons. Alice and Betty Adler were included among the defendants. Sometime thereafter plaintiffs' counsel discovered that both Adlers had died well before the date ofMr. King's fall.6 On March 30,2004 plaintiffs filed an amended complaint naming the executors of the respective estates as party defendants. Thereafter, defense counsel filed the preliminary objections currently at Issue. The case of Thompson v. Peck, 181 A 597,320 Pa. 27 (1935) is controlling. Thompson sued Peck within the statute of limitations. He later discovered that Peck had died prior to the commencement of his action. After the statute had expired, Thompson attempted to amend the complaint to join Peck's estate. The Supreme Court would not permit it. As the Court noted: 1 The appropriateness of service was not one of those factors. We did, however, allow plaintiffs' to create a factual record so as to allow review of their equitable arguments. 2 Amended Complaint, para. 4. 3 Affidavit of Counsel, para. 3. 4 Affidavit of Counsel, para. 1. 5 Affidavit of Counsel, para. 2. 6 Alice Adler died on December 9, 1995. Betty Adler passed away on October 2,2000. See Preliminary Objections, paragraphs 2 and 3. A dead man cannot be a party to an action and any such attempted proceeding is completely void and of no effect. This disposes of the further argument that the defect was cured by the amendment. There can be no amendment where there is nothing to amend. In any event, an amendment, the effect of which is to bring in new parties after the running of the statute of limitations, will not be permitted. 181 A at 598 (citations omitted). The instant action was filed on the last permissible day under the statute of limitations.7 It did not toll the statute with regard to the claims against the Adler estates. Plaintiffs' amended complaint attempting to join the Adler estates was filed more than 11 months after the statute had expired. Since plaintiffs have not presented any valid basis upon which the statute may have been tolled, their claims against the Adler estates are time barred. 8 ORDER OF COURT AND NOW, this 13TH day ofMA Y, 2005, for the reasons set forth in the accompanying opinion, Defendants Alice and Betty Adler cannot be named as parties in this action and plaintiffs' claims against the estates of Alice and Betty Adler are time barred. Therefore, the Amended Complaint is dismissed with prejudice as to those parties. By the Court, Isl Edward E. Guido Edward E. Guido, 1. 7 42 Pa. C.S.A. ~ 5524. 8 While Plaintiffs have alleged that they were in negotiations with Defendant AAA's insurance carrier, they have not alleged any facts which would toll the statute. Even if the carrier also covered the Adlers and knew they were dead (which is not alleged), it was under no duty to inform Plaintiffs. See Montanya v. McGonegal, 757 A.2d 947 (Pa.Super. 2000) and Lange v. Burd, 800 A.2d 336 (Pa.Super. 2002). Thomas E. Brenner, Esquire C. Roy Weidner, Esquire Craig A. Stone, Esquire John Flounlacker, Esquire