T. Wisniewski v. J.F. Frommer, Jr., D.O. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Wisniewski, :
Appellant :
:
v. : No. 912 C.D. 2021
:
James F. Frommer, Jr., D.O.; : Submitted: May 4, 2022
Andrew J. Dancha, D.O.; :
Correct Care Solutions, LLC; :
Deborah Cutshall; William Dreibelbis, :
R.N.; Paul A. Noel, M.D.; Eugene H. :
Ginchereau, M.D.; Kathy Montag; :
Jodie White; Andrea Norris, R.N.; :
Joseph J. Silva, R.N.; Christopher :
Oppman; Pennsylvania Department of :
Corrections :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: February 16, 2023
This case returns to us after this Court remanded the matter to the Court
of Common Pleas of Huntingdon County (trial court), Wisniewski v. Frommer (Pa.
Cmwlth., No. 266 C.D. 2020, filed February 11, 2021), with specific instructions on
how to proceed with the case after the appellant, Thomas Wisniewski, died while his
appeal was pending. Following her unsuccessful attempts on remand to open an estate
on behalf of Wisniewski, Wisniewski’s former counsel, Marianne Sawicki (Ms.
Sawicki), now returns to this Court, having filed a notice of appeal from the trial court’s
July 14, 2021 order denying her application for leave to amend Wisniewski’s
underlying complaint and dismissing the action with prejudice. As of this date, a
personal representative has not been appointed for Wisniewski and an estate has not
been opened. For the reasons that follow, we dismiss the appeal.
I. Facts and Procedural History
The case has a long history. For our limited purposes, the relevant history
is as follows. In 2015, Wisniewski initiated an action in the trial court against
numerous defendants, including the Pennsylvania Department of Corrections (DOC)
and DOC employees, alleging, inter alia, claims for breach of contract for inmate
health care and medical malpractice in connection with treatment he received while
incarcerated at the State Correctional Institutional (SCI) at Smithfield (“the 2015
action”). The trial court sustained preliminary objections to most, but not all, of the
claims. Wisniewski filed an appeal to the Superior Court. On January 28, 2020, the
Superior Court transferred the appeal to this Court because the appeal involved a
Commonwealth party. The appeal was docketed in this Court at No. 266 C.D. 2020.
On December 17, 2021, during the pendency of that appeal, Wisniewski
died. As a result, on February 11, 2021, this Court entered the following order
(Remand Order):
AND NOW, this 11th day of February, 2021, counsel for
[Wisniewski] having advised the Court that [Wisniewski] is now
deceased, it appears that this appeal in its current posture is no
longer justiciable. Therefore, this case is remanded to the [trial
court] so that it may entertain an application to amend the
[c]omplaint [in the 2015 action] to assert a survival claim, if
any, by the estate of Thomas Wisniewski, should such an
estate be opened, and to adjudicate such claim; or, if no such
application is filed within ninety days of the return of the
original record from this Court, to dismiss the [c]omplaint
[in the 2015 action]. Jurisdiction relinquished.
2
(Remand Order at 1) (emphasis added).1
After our Remand Order was entered, Ms. Sawicki unsuccessfully
attempted to open an estate for Wisniewski. Wisniewski’s surviving heirs, his adult
children, declined to serve as personal representatives or to petition to open the estate
themselves. However, SCI-Smithfield inmate Franklin Castle (Castle) agreed to serve
as administrator pendente lite, and, on June 9, 2021, he signed, before a notary, a
petition for letters of administration pendente lite. The Register of Wills in Huntingdon
County rejected this petition as she had not witnessed Castle’s signature, which is
required under 20 Pa.C.S. §3154(a). The Register of Wills then proposed that Castle
sign the petition via video call; however, on June 21, 2021, the Huntingdon County
Court Administrator indicated she was unable to set up the video call. (Reproduced
Record (R.R.) at 7a, 10a, 16a, 18a-20a.)
On June 25, 2021, Ms. Sawicki filed two applications with the trial court
in the 2015 action: (1) an application for leave to amend the complaint to allow Castle
to continue the action in the place of the now-deceased Wisniewski so that the litigation
could continue; and (2) an application for a writ of habeas corpus ad testificandum,
seeking to have Castle transported to the Huntingdon County Register of Wills so he
could appear in person to sign the petition for letters of administration pendente lite.
(R.R. at 11a-12a, 14a-20a.)
By order dated July 14, 2021, the trial court denied Ms. Sawicki’s
application for leave to amend the complaint and dismissed the 2015 action with
prejudice because an estate had not been opened within the 90-day period provided by
this Court in its Remand Order. The trial court explained that while Ms. Sawicki had
filed an application for leave to amend the complaint, “she did not complete the
1
The trial court received the record from this Court on March 30, 2021. (Reproduced Record
(R.R.) at 7a.) Thus, an estate had to be opened and an application to amend the complaint had to be
filed by June 28, 2021.
3
predicate step of opening [Wisniewski’s] estate. In the absence of a valid estate[,] no
party has standing to assert claims on Wisniewski’s behalf.” (Trial ct. op. 7/14/21 at
2.)2
Ms. Sawicki filed a motion for reconsideration on July 21, 2021, asserting
she was a creditor to Wisniewski’s estate and reimbursement was owed.3 On August
13, 2021, Ms. Sawicki filed a notice of appeal in this Court “pro se,” citing
Pennsylvania Rule of Appellate Procedure (Pa.R.A.P.) 501 and stating that she “is a
party aggrieved by the Order.” See also Appellant’s Brief at 12 (“Undersigned counsel
appeals as a party aggrieved by the July 14, 2021 Order, pursuant to Pa.R.A.P. 501.”).
II. Appeal
On appeal, Ms. Sawicki essentially challenges the efficacy of the trial
court’s July 14, 2021 order denying her application for leave to amend the complaint
and dismissing the 2015 action with prejudice. Apparently, acknowledging that a
deceased person cannot be a party to an action, Ms. Sawicki also claims she should be
permitted to appeal in her own right because she is an aggrieved party under Pa.R.A.P.
501.
III. Discussion
A. Subject Matter Jurisdiction
Initially we note that this Court first exercised subject matter jurisdiction
over this matter when it was transferred by the Superior Court to the Commonwealth
2
With respect to the application for a writ of habeas corpus ad testificandum, the trial court
dismissed the application because it should have been filed in the Orphans’ Court but noted in dicta
that the manner in which Ms. Sawicki sought to form an estate, by using a fellow prisoner as the
representative of the estate, was improper.
3
There is no order from the trial court ruling on the motion for reconsideration in the record;
however, the trial court states in its Pa.R.A.P. 1925(a) opinion that it denied the motion after the filing
of the present appeal and that it elected to use Ms. Sawicki’s motion for reconsideration as her
statement of errors.
4
Court upon the request of DOC. In our subsequent order remanding the case to the
trial court, we made clear that the trial court should “dismiss the [c]omplaint” if no
estate was opened and an application to amend the complaint to assert a survival claim
was not filed. On remand, the trial court denied the application for leave to amend the
complaint and dismissed the complaint with prejudice. The trial court acted in direct
response to, and entirely within the bounds of, this Court’s remand order.
“[T]he test for determining whether a court has jurisdiction of the subject
matter is the competency of the court to determine controversies of the general class to
which the case presented for its consideration belongs.” Heath v. Workers’
Compensation Appeal Board (Pennsylvania Board of Probation & Parole), 860 A.2d
25, 29 (Pa. 2004). “In other words, we determine whether ‘the court [has] power to
enter upon the inquiry, not whether it might ultimately decide that it [is] unable to
grant the relief sought in the particular case.’” Id. (emphasis added).
Applying this case law, it is beyond cavil that the trial court was
competent to address Ms. Sawicki’s application for leave to amend the complaint in
the 2015 action, and to pass upon whether to substitute Castle as plaintiff in place of
the now-deceased Wisniewski. Rosenberg v. Silver, 97 A.2d 92, 94 (Pa. 1953) (“it
cannot be questioned that the court of common pleas was empowered to refuse the
permission sought for in the substitution of parties”).4
4
Moreover, Wisniewski’s original appeal was transferred to this Court on January 28, 2020,
because this Court has subject matter jurisdiction when DOC is defendant. Wisniewski’s death while
the appeal was pending in this Court triggered application of Appellate Rule 502(a) which provides,
in pertinent part:
(a) Death of a party.--If a party dies after a notice of appeal or petition
for review is filed or while a matter is otherwise pending in an appellate
court, the personal representative of the deceased party may be
substituted as a party on application filed by the representative or by
any party with the prothonotary of the appellate court. The application
(Footnote continued on next page…)
5
Thus, we conclude that the trial court unquestionably had subject matter
jurisdiction to first determine whether to grant the application for leave to amend the
complaint and to dismiss the action if it saw fit.5 Having determined that the trial court
had subject matter jurisdiction over the matters below, we turn next to whether this
Court has subject matter jurisdiction over the appeal.
The denial of motion to amend to a substitute personal representative and
to dismiss a case on the grounds that a personal representative has not been appointed
is a final appealable order. See Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Super.
1996) (affirming (not dismissing for lack of subject matter jurisdiction) trial court’s
decision that complainant was not entitled to amend complaint to name personal
representative of decedent’s estate).
Section 762 of the Judicial Code vests this Court with jurisdiction over
“final orders of the courts of common pleas” involving, inter alia, local government
of a party shall be served upon the representative in accordance with
the provisions of Pa.R.A.P. 123. If the deceased party has no
representative, any party may suggest the death on the record and
proceedings shall then be had as the appellate court may direct. . .
.
Pa.R.A.P. 502(a) (emphasis added).
Because Wisniewski died while his appeal was pending and because he had no
personal representative, this Court remanded in accordance with Appellate Rule 502(a) with specific
directions to the trial court. On remand, the trial court followed our order by dismissing the case
when an estate had not been opened and a personal representative, who could have filed the motion
to amend the complaint, was not appointed in 90 days.
5
The trial court’s dismissal of the 2015 action was consistent with Grimm v. Grimm, 149 A.3d
77, 83 (Pa. Super. 2016), because without a valid personal representative the trial court no longer had
subject matter jurisdiction; hence it dismissed the complaint for that reason and that order was
appealable to this Court. See discussion supra. The fact that the trial court ultimately denied Ms.
Sawicki’s application for leave to amend on the grounds that a personal representative had not yet
been appointed does not mean it lacked subject matter jurisdiction to: (1) rule on the application for
leave to amend the complaint or (2) dismiss the 2015 action on the grounds that no personal
representative had been appointed. See Heath, 860 A.2d at 29.
6
civil matters. 42 Pa.C.S. §762(a)(4). Pa.R.A.P. 341(a) provides generally that an
appeal may only be taken as of right from a final order of a government unit or trial
court. Pa.R.A.P. 341(a); Pennsylvania Manufacturers’ Association Insurance
Company v. Johnson Matthey, Inc., 188 A.3d 396, 399 (Pa. 2018). Under Pa.R.A.P.
341(b), a final order is an order that either disposes of an action or is otherwise
expressly entered as a final order. Pa. R.A.P. 341(b). A final order is one that disposes
of all claims or parties and ends the litigation. Piltzer v. Independent Federal Savings
& Loan Association of Philadelphia, 319 A.2d 677, 678 (Pa. 1974). A final appealable
order subject to our review has now been appealed.
B. Standing
We now address Ms. Sawicki’s standing to file the appeal pro se, as she
claims she is an aggrieved “party” pursuant to Appellate Rule 501(a). Pa.R.A.P.
501(a).
Absent statutory exceptions that are not relevant to this appeal, Appellate
Rule 501 explicitly requires an appellant to be a party to the matter on appeal.
Pursuant to Pa. R.A.P. 501(a), “[e]xcept where the right to appeal is enlarged by statute,
any party who is aggrieved by an appealable order . . . may appeal therefrom.”
(Emphasis added.) A “party” is defined in the Judicial Code as “[a] person who
commences or against whom relief is sought in a matter.” Section 102 of the
Judicial Code, 42 Pa.C.S. §102. (Emphasis added.) Accordingly, an appeal by one
who was not a party to a proceeding in the trial court must be dismissed. Society Hill
Civic Association v. Pennsylvania Gaming Control Board, 928 A.2d 175, 183 (Pa.
2007); In re Barnes Foundation, 871 A.2d 792, 794 (Pa. 2005); Mechanics National
Bank v. Buchman, 97 A. 1056 (Pa. 1916); In re Tax Sale Held September 10, 2003 by
7
Tax Claim Bureau of County of Lackawanna, 859 A.2d 15, 20 (Pa. Cmwlth. 2004);
Stanbro v. Zoning Hearing Board of Cranberry Township, 566 A.2d 1285, 1286 (Pa.
Cmwlth. 1989). See also In re Devereux’s Estate, 46 A.2d 168 (Pa. 1946) (no standing
to appeal because appellant never properly became a party to the proceeding in trial
court).
Here, Ms. Sawicki appeals pro se from an order from the trial court in an
action where she was not a party, but rather, former counsel to her deceased client.
She did not commence the 2015 action. The only party who commenced the 2015
action was Wisniewski.
The fact that Ms. Sawicki was Wisniewski’s attorney does not make her
a party to the action. “An attorney is not a party to the action or suit in which he or she
has been retained but instead he or she acts on behalf of and in the name of the client,
is the agent of the client, and in court stands in the client’s stead.” 7A C.J.S. Attorney
& Client §256 (2022). See also In re Geniviva, 675 A.2d 306 (Pa. Super. 1996)
(holding executor’s former attorney did not have standing under Appellate Rule 501 to
appeal the trial court’s order that surcharged an executor and did not direct the attorney
to take any action with respect to the estate).6
Although this Court has subject matter jurisdiction to hear this appeal,
because Ms. Sawicki lacks standing to file this appeal, we must dismiss the appeal.
________________________________
PATRICIA A. McCULLOUGH, Judge
6
Although Pennsylvania Superior Court cases are not binding on this Court, such cases may
offer persuasive precedent where they address analogous issues. Commonwealth v. Monsanto
Company, 269 A.3d 623, 679 n.20 (Pa. Cmwlth. 2021).
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Wisniewski, :
Appellant :
:
v. : No. 912 C.D. 2021
:
James F. Frommer, Jr., D.O.; :
Andrew J. Dancha, D.O.; :
Correct Care Solutions, LLC; :
Deborah Cutshall; William Dreibelbis, :
R.N.; Paul A. Noel, M.D.; Eugene H. :
Ginchereau, M.D.; Kathy Montag; :
Jodie White; Andrea Norris, R.N.; :
Joseph J. Silva, R.N.; Christopher :
Oppman; Pennsylvania Department of :
Corrections :
ORDER
AND NOW, this 16th day of February, 2023, the Notice of Appeal filed
pro se by Appellant Decedent Thomas Wisniewski’s former counsel Marianne
Sawicki is hereby DISMISSED.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Thomas Wisniewski, :
Appellant :
:
v. : No. 912 C.D. 2021
: Submitted: May 17, 2022
James F. Frommer, Jr., D.O.; :
Andrew J. Dancha, D.O.; :
Correct Care Solutions, LLC; :
Deborah Cutshall; William Dreibelbis,:
R.N.; Paul A. Noel, M.D.; Eugene H. :
Ginchereau, M.D.; Kathy Montag; :
Jodie White; Andrea Norris, R.N.; :
Joseph J. Silva, R.N.; Christopher :
Oppman; Pennsylvania Department :
of Corrections :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE DUMAS FILED: February 16, 2023
I respectfully dissent, as I would quash the appeal for lack of subject
matter jurisdiction.1 In my view, the majority has failed to explain how the trial
court had subject matter jurisdiction to enter the orders on appeal.
1
An appellate court may always raise the issue of a court of common pleas’ (trial court) or
lower tribunal’s subject matter jurisdiction sua sponte. Mazur v. Trinity Area Sch. Dist., 961 A.2d
96, 101 (Pa. 2008). Alternatively, I would vacate the trial court’s orders at issue and remand. See,
e.g., NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 319-20 (Pa. Super. 2012)
(vacating order resolving suit on the merits and remanding with instructions to dismiss the lawsuit
because federal courts had exclusive subject matter jurisdiction). Cf. In re Pet. for Enf’t of
Subpoenas Issued by Hr’g Exam’r in a Proceeding before Bd. of Med., 214 A.3d 660, 670 (Pa.
2019) (vacating this Court’s order because this Court lacked original jurisdiction). It is well settled
that we may cite to Superior Court cases for their persuasive value. Commonwealth v. Monsanto
Co., 269 A.3d 623, 653 n.20 (Pa. Cmwlth. 2021).
I suggest that the case law supports the following conclusions. First,
when a trial court or other lower tribunal lacks subject matter jurisdiction but
nonetheless substantively resolves the claims before it, an appellate court will quash
the appeal. Second, when a trial court or other lower tribunal lacks subject matter
jurisdiction and dismisses one or more claims for lack of subject matter jurisdiction,
an appellate court may affirm, reverse, or otherwise address the order.2 The
distinction between the two conclusions is that for the latter, the trial court’s order is
not an order that enters upon or otherwise embarks on the inquiry of the merits of
the claims.3 Thus, an appellate court may review the trial court’s order resolving its
own subject matter jurisdiction, as that is not a merits-based decision.4 My reasoning
follows.
2
I need not discuss the appealability of an order that dismisses some, but not all, claims
for lack of subject matter jurisdiction.
3
See Commonwealth v. Reid, 235 A.3d 1124, 1143 n.10 (Pa. 2020) (noting, “[w]hen the
jurisdiction does not exist then all the acts of the tribunal are void and of [no] effect, and may be
so treated in any collateral proceeding. Where there is no jurisdiction there is no authority to
pronounce judgment, and consequently a judgment so entered . . . has no substance, force, or
authority.” (cleaned up)). “A court devoid of jurisdiction over the case cannot hear the case,
address or consider the merits of the case, cannot make a decision or order in favor of either party,
and cannot render a summary judgment, as such a decision would be on the merits of the action.
It can only dismiss the case for want of jurisdiction.” 20 Am. Jur. 2d Courts § 63 (2023) (cleaned
up); accord 21 C.J.S. Courts § 102 (2022).
4
Commonwealth v. Danysh, 833 A.2d 151, 152 n.1 (Pa. Super. 2003) (explaining that an
appellate court may exercise its jurisdiction over a lower court order holding it lacks subject matter
jurisdiction, “since otherwise, we could never (at least theoretically) review such an order.”
(citation omitted)); see also, e.g., Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986)
(“And if the record discloses that the lower court was without jurisdiction this court will notice the
defect, although the parties make no contention concerning it. When the lower federal court lacks
jurisdiction, we have jurisdiction on appeal, not of the merits but merely for the purpose of
correcting the error of the lower court in entertaining the suit.” (cleaned up)). Of course, any
appeal from such an order must be timely and otherwise properly invoke our appellate jurisdiction.
See, e.g., Martin v. Zoning Hr’g Bd. of W. Vincent, 230 A.3d 540, 544 (Pa. Cmwlth. 2020). In
Martin, the administrative board resolved an untimely appeal. Id. at 543. The losing party
(Footnote continued on next page…)
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I begin with the premise that every judicial decision must be
contextually read against its facts and procedural posture. Maloney v. Valley Med.
Facilities, Inc., 984 A.2d 478, 485-86 (Pa. 2009).5 With that premise in mind, I
acknowledge that for decades, our courts have improperly used “jurisdiction” and
“power” interchangeably. In re Motion Picture Exhibitions on Sunday in Borough
of Hellertown, 47 A.2d 273, 276 (Pa. 1946) (Hellertown).
“Jurisdiction relates solely to the competency of the particular court or
administrative body to determine controversies of the general class to which the case
then presented for its consideration belongs.” Domus, Inc. v. Signature Bldg. Sys.
of PA, LLC, 252 A.3d 628, 636 (Pa. 2021) (citation omitted).6 Jurisdiction is a
appealed to the trial court, which sustained the appeal and vacated the board’s order for lack of
jurisdiction. Id. On appeal to this Court, the Martin Court agreed with the trial court that the board
lacked jurisdiction but that the trial court should have vacated the board’s order and quashed the
appeal. Id. at 548 (citing In re K.L.S., 934 A.2d 1244, 1246 n.3 (Pa. 2007) (citing Sahutsky v. H.H.
Knoebel Sons, 782 A.2d 996, 1001 n.3 (Pa. 2001)).
5
“Notably, the axiom that decisions are to be read against their facts[] prevents the wooden
application of abstract principles to circumstances in which different considerations may pertain.”
Maloney, 984 A.2d at 485-86 (cleaned up). Construing the general language of a decision’s
holding literally “is a path to error” that results in “unintentional extension of governing
principles.” Lance v. Wyeth, 85 A.3d 434, 453-54 (Pa. 2014) (cleaned up).
For example, the majority cites Nelson v. Estate of Massey, 686 A.2d 1350 (Pa. Super.
1996), for the apparent proposition that an appellate court can affirm a trial court’s order denying
relief to amend the complaint to name the personal representative of the estate. Wisniewski v.
Frommer (Pa. Cmwlth., No. 912 C.D. 2021, filed February 16, 2023) (Wisniewski II), slip op. at
6. Nelson is factually distinguishable because there was no issue as to the absence of a personal
representative of the estate—unlike the case at bar. See Nelson, 686 A.2d at 1351. In Nelson, the
plaintiff simply failed to timely amend his complaint to name the known, existing personal
representative. See id. Even the Nelson Court acknowledged that if “no personal representative
[was] 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. (discussing Finn v. Dugan, 394 A.2d 595 (Pa. Super. 1978)).
6
Accord Hellertown, 47 A.2d at 276 (stating, “[j]urisdiction relates to the field of litigation
in which a court has authority to adjudicate. Power refers to what a court can do in that field under
a given set of circumstances.” (footnote omitted)).
LAD - 3
prerequisite to a trial court’s power to adjudicate the issues, i.e., act on the merits.
In re J.M.Y., 218 A.3d 404, 415 (Pa. 2019). In other words, if a trial court lacks
subject matter jurisdiction, then it lacks the power to enter upon or otherwise embark
on the inquiry of the merits of the claim. Heath v. Workers’ Comp. Appeal Bd. (Pa.
Bd. of Prob. & Parole), 860 A.2d 25, 29 (Pa. 2004).
For example, the “death of a party divests a court of subject matter
jurisdiction over claims brought by or against the deceased party.” Grimm v. Grimm,
149 A.3d 77, 84-85 (Pa. Super. 2016). Thus, any post-death filings and court orders
resolving same are null and void. Id. at 85-86 (vacating judgment of non pros
because the underlying filing was a nullity).7
To restore the trial court’s subject matter jurisdiction following the
death of a party, two steps must occur. First, a personal representative must be
appointed for the estate. Id. at 84; Nelson, 686 A.2d at 1351. The Register of Wills
exercises exclusive original jurisdiction over the appointment of a decedent’s
personal representative. 20 Pa. C.S. §§ 711(12), 901; In re Estate of Wisniewski,
283 A.3d 811, 813 (Pa. Super. 2022) (stating that “original jurisdiction over petitions
for letters of administration rests with the local register of wills”); see also Nelson,
686 A.2d at 1351. In contrast, the Commonwealth Court has no jurisdiction to
resolve disputes over the appointment of a personal representative. Yakowicz v.
Costigan, 331 A.2d 238, 241 (Pa. Cmwlth. 1975) (dismissing complaint because the
Register of Wills has exclusive jurisdiction to appoint administrators and the
Orphans’ Court has exclusive appellate jurisdiction); accord 20 Pa. C.S. § 711;
7
“Specifically, this Court and our Supreme Court have repeatedly used the terms ‘null’
and ‘void’ when discussing the effect of a filing after a party dies.” Grimm, 149 A.3d at 85(citations omitted).
LAD - 4
Wisniewski, 283 A.3d at 813. Second, the appointed personal representative must
be substituted in the decedent’s place. Grimm, 149 A.3d at 84.
Here, the majority holds that the trial court “unquestionably had subject
matter jurisdiction” and “was competent to address” and issue orders resolving
Marianne Sawicki’s post-death filings. Wisniewski II, slip op. at 5-6 & n.4. I
respectfully disagree.
I disagree because as set forth above, and as the Wisniewski Court held,
Sawicki failed to file a petition for letters of administration before the Register of
Wills, which has original jurisdiction. See, e.g., Wisniewski, 283 A.3d at 813;
Nelson, 686 A.2d at 1351. Because no personal representative was appointed for the
estate, the instant trial court could not substitute the personal representative for the
decedent. See Grimm, 149 A.3d at 84. The two-step process for restoring the trial
court’s subject matter jurisdiction following the death of a party did not occur. See
id.Without subject matter jurisdiction, the trial court had no power to enter
upon or otherwise embark on any merits analysis of Sawicki’s filings. See Heath,
860 A.2d at 29. Accordingly, in my opinion, Sawicki’s post-death filings and the
trial court’s orders resolving same are null and void. See Grimm, 149 A.3d at 84-
85. Any appeals therefrom must be quashed as the trial court lacked subject matter
jurisdiction to enter the orders at issue. See id. Framed differently, if the underlying
merits orders are null and void, then no appeal can ultimately lie as this Court has
nothing to “review.”8
8
The majority cites Rosenberg v. Silver, 97 A.2d 92, 94 (Pa. 1953), in support. Wisniewski
II, slip op. at 5. The case is inapt because Rosenberg involved an administrator that was appointed
for the deceased defendant. Rosenberg, 97 A.2d at 93. Here, no administrator was appointed, and
Sawicki did not file a petition of record with the Register of Wills. Wisniewski, 283 A.3d at 813.
LAD - 5
The majority simply fails to explain how, after Wisniewski’s death, the
trial court’s subject matter jurisdiction was restored such that it could rule on
Sawicki’s post-death filings. Thus, because no personal representative had been
appointed, I would vacate the trial court’s orders and quash Sawicki’s appeal. See
Sahutsky, 782 A.2d at 1001 n.3.9
LORI A. DUMAS, Judge
9
It follows that I need not address whether Sawicki had standing to appeal as subject matter
jurisdiction is a prerequisite condition.
To the extent the majority implies that Sawicki has no avenue for relief, I reiterate that
Sawicki must pursue relief before the Register of Wills, which has exclusive jurisdiction over
letters of administration. See Wisniewski, 283 A.3d at 813. Certainly, this Court lacks subject
matter jurisdiction. See Yakowicz, 331 A.2d at 241.
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