Estate of Marcella Marsh v. Lizza, C. ( 2018 )

J-S73002-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BRIAN MARSH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COLLEEN MARSH LIZZA : No. 532 MDA 2017
:
--------------------------------------------- :
ESTATE OF MARCELLA M. MARSH, BY :
AND THROUGH THE ADMINISTRATOR, :
BRIAN MARSH :
:
Appellant :
:
:
v. :
:
:
COLLEEN MARSH LIZZA
Appeal from the Order Entered March 1, 2017
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2812 of 2016
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2018
Appellant, Brian Marsh, appeals from the order entered on March 1,
2017, sustaining preliminary objections filed by Colleen Marsh Lizza (Lizza)
in response to a wrongful death and survivor action commenced by
Appellant. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On May 3, 2016, Appellant instituted an action under the Wrongful
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* Retired Senior Judge assigned to the Superior Court.
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Death Act and Survival Acts1 to recover damages against his sister, Lizza.
Specifically, Appellant filed a praecipe for the issuance of a writ of summons
in his capacity as the administrator of the estate of his mother, Marcella M.
Marsh (Marcella). Thereafter, Appellant reissued the writ of summons, as
administrator on behalf of the estate, on June 2, 2016, June 30, 2016, and
July 21, 2016. There is no proof in the record that the original writ, or any
of these reissued writs, was served upon Lizza.
On August 10, 2016, Appellant filed a praecipe to reissue and amend
the writ of summons. Pertinent to this appeal, the August 19, 2016 praecipe
and writ named Appellant in his individual capacity as the plaintiff and no
longer identified Appellant, as a claimant, in his capacity as administrator of
his mother’s estate. The August 10, 2016 praecipe and writ also provided a
different street address for Lizza. Lizza was served with that praecipe and
writ of summons on September 19, 2016.
On September 22, 2016, Appellant filed a complaint under the
Wrongful Death Act and Survival Acts, in his individual capacity, alleging that
Lizza, a trained nurse and Marcella’s caregiver, acted wantonly, recklessly,
and negligently, ultimately leading to their mother’s death on July 28, 2013.
On October 12, 2016, Lizza filed preliminary objections to the complaint.
Lizza challenged, inter alia, the amended writ of summons and subsequent
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1 42 Pa.C.S.A. §§ 8301 and 8302, respectively.
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complaint because, although Appellant was the named plaintiff in all of the
various filings, Appellant unilaterally changed the capacity in which he was
asserting his claims without consent or leave of court. Lizza also challenged
Appellant’s capacity to sue as an administrator unless duly appointed and
argued Appellant’s wrongful death and survivor claims were “untimely and
therefore barred by the two year statute of limitations[.]” Preliminary
Objections, 10/12/2016, at 3-4.2 In response to Lizza’s preliminary
objections, Appellant recognized that application of the statute of limitations
is a question of law for a trial court, but argued that dismissal of the
complaint was unwarranted as there remained issues of fact for a factfinder
under the discovery rule. More specifically, Appellant asserted that,
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2 Pursuant to the Pennsylvania Rules of Civil Procedure, the defense that a
claim is barred by the statute of limitations is required to be set forth in a
responsive pleading entitled “New Matter.” Pa.R.Civ.P. 1030(a) (“all
affirmative defenses including ... statute of limitations… shall be pleaded in a
responsive pleading under the heading “New Matter”.) Thus, it was
procedurally improper for Lizza to raise the defense of statute of limitations
as a preliminary objection. However, our Court has held that “[w]here a
party erroneously asserts substantive defenses in preliminary objections
rather than to raise these defenses by answer or in new matter, the failure
of the opposing party to file preliminary objections to the defective
preliminary objections, raising the erroneous defenses, waives the
procedural defect and allows the trial court to rule on the preliminary
objections.” Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992), aff'd, 646
A.2d 1166 (Pa. 1994). In this instance, Appellant failed to file preliminary
objections to Lizza’s preliminary objections; therefore, any claim that Lizza’s
preliminary objections were procedurally defective is waived and Lizza’s
preliminary objection raising the statute of limitations defense could be
decided by the trial court.
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“questions regarding [Marcella’s] cause of death did not begin to arise until
the latter part of 2014” even though her death resulted on “July 28, 2013[.]”
Memorandum of Law in Opposition to Preliminary Objections, 11/28/2016, at
7-8. The trial court held oral argument on December 12, 2016.
On March 1, 2017, the trial court entered an order and opinion
sustaining Lizza’s preliminary objections and striking Appellant’s complaint.
This timely appeal followed.3
Appellant raises the following issues for our review:
1. Whether the trial court committed a manifest error of law or
an abuse of discretion in sustaining [Lizza’s] preliminary
objection under Pa.R.C.P. 1028(a)(1) and in striking the
amended writ of summons and subsequent complaint by
classifying the summons as a “pleading” in direct opposition
to Pa.R.C.P. 1017 and improperly ascertaining it could not be
amended without the consent of [Lizza] or leave of court
under Pa.R.C.P. 1033 and thereby was facially defective and a
nullity?
2. Whether the trial court committed a manifest error of law or
an abuse of discretion in sustaining [Lizza’s] preliminary
objection under Pa.R.C.P. 1028(a)(1) and in striking the
amended writ of summons and subsequent complaint by
failing to consider that the amendment to the summons did
not add a new party, but only amended the summons to
change the name or the capacity [in which] Appellant
commenced the action?
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3 Appellant filed a notice of appeal on March 21, 2017. On March 23, 2017,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court relies upon its earlier March 1, 2017 opinion as its
rationale for sustaining Lizza’s preliminary objections.
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3. Whether the trial court committed a manifest error of law or
an abuse of discretion in sustaining [Lizza’s] preliminary
objection under Pa.R.C.P. 1028(a)(1) and in striking the
amended writ of summons and subsequent complaint by
failing to consider that the amendment to the summons only
amended the summons as to what capacity [] Appellant
commenced the action and that [Lizza] suffered no prejudice
from the amendment?
4. Whether the trial court committed a manifest error of law or
an abuse of discretion in sustaining [Lizza’s] preliminary
objection under Pa.R.C.P. 1028(a)(1) and in striking the
amended writ of summons and subsequent complaint by
disregarding, failing to consider, overlooking the facts of
record, and wrongfully applying [] a two year statute of
limitations to the amendment to the summons and
subsequently filed complaint?
5. Whether the trial court committed a manifest error of law or
an abuse of discretion by failing to consider the issue of the
legal sufficiency of the complaint?
Appellant’s Brief at 4-5 (superfluous capitalization, italics, and suggested
answers omitted).
Because Appellant’s fourth issue is dispositive, we will address that
issue first. In sum, Appellant argues as follows:
[] Appellant’s [c]omplaint alleges that the decedent died in 2013
and was listed as having died of natural causes. [] Appellant
brought the wrongful death suit in 2016 only after learning
further facts about [Lizza’s] actionable behavior on the evening
of the decedent’s death. The [t]rial [c]ourt relied on case law
holding that the “discovery rule” does not apply to wrongful
death actions. However, given that the [t]rial [c]ourt analyzed
the amendment to the writ of summons and the preliminary
objections under the wrong rule – Pa.R.C.P. 1033(a) – the facts
alleged in the [c]omplaint address matters relevant to more than
just the discovery rule.
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Upon remand, therefore, the [t]rial [c]ourt should determine if []
Appellant can plead and prove facts sufficient to show that
[Lizza] has intentionally or fraudulently concealed the
circumstances of the decedent’s death, so as to toll the statute
of limitations or to estop her from asserting the defense.
Appellant’s Brief at 23.
Initially, we note that, although Appellant raised the issue of the
discovery rule before the trial court, he never alleged fraudulent
concealment, did not raise fraudulent concealment in his Pa.R.A.P. 1925(b)
statement, and, in fact, raises that legal theory for the first time on appeal.
We deem Appellant’s fraudulent concealment claim waived. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the [Pa.R.A.P. 1925(b)] Statement
[…] are waived.”); Pa.R.A.P. 302 (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”). Moreover, while
Appellant mentions the discovery rule in his brief, he does not cite legal
authority to support his claim that the rule is applicable in wrongful death
actions. We could deem this issue waived. See Commonwealth v.
Yocolano, 169 A.3d 47, 60 n.9 (Pa. Super. 2017)
(“Appellate arguments which fail to adhere to [our] rules [of appellate
procedure] may be considered waived, and arguments which are not
appropriately developed are waived. Arguments not appropriately developed
include those where the party has failed to cite any authority in support of a
contention.”). We choose not to find the issue waived. However, for the
following reasons, Appellant’s argument lacks merit.
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We review an order sustaining preliminary objections to determine
whether the trial court committed an error of law. Feingold v. Hendrzak,
15 A.3d 937, 941 (Pa. Super. 2011). Moreover, this Court has previously
determined:
Ordinarily most questions relating to the applicability of the
defense of the statute of limitations are questions of fact to be
determined by the jury. Specifically, the questions of whether a
plaintiff has exercised due diligence in discovering the incidence
of his injury is usually a jury question. Whether the statute has
run on a claim is usually a question of law for the judge, but
where [] the issue involves a factual determination, i.e. what is a
reasonable [discovery] period, the determination is for the jury.
Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003).
Our Supreme Court recently reaffirmed the following, longstanding
legal principles:
[A] survival action is not an independent cause of action, but a
continuation of a cause of action that accrued to the decedent,
and the latest time when the statute of limitations runs is at the
decedent's death.
The statute of limitations will, of course, begin to run prior
to death with respect to injuries that the afflicted individual
should reasonably have “discovered” while alive, and, for this
reason, [] the survival statute begins to run, “at the latest,”
at death. The explanation for this lies in the nature of the
survival cause of action, for [] “the survival statutes do not
create a new cause of action; they simply permit a personal
representative to enforce a cause of action which has already
accrued to the deceased before his death.” The “accrual” concept
was expressly recognized []; hence, the statute of limitations
was regarded as running, at the latest, from the time of death,
unless it had earlier “accrued” through the fact that the victim
knew, or should reasonably have known, of his injury.
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In the context of survival actions, which, as heretofore
discussed, merely permit a personal representative to pursue a
cause of action that had already accrued to a victim prior
to death, the [rule expressed in] Pocono International
Raceway v. Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983)
[] causes the statute of limitations to commence to run on the
date when the victim ascertained, or in the exercise of due
diligence should have ascertained, the fact of a cause of action.
In no case, however, can that date be later than the date
of death; hence, the statute runs, at the latest, from death.
Because death is a definitely ascertainable event, and
survivors are put on notice that, if an action is to be
brought, the cause of action must be determined through
the extensive means available at the time of death, there
is no basis to extend application of the discovery rule to
permit the filing of survival actions,
or wrongful death actions, at times beyond the specified
statutory period.
Dubose v. Quinlan, 2017 WL 5616235, at *9–10 (Pa. 2017) (internal
citations and original brackets omitted; italics in original; emphasis added).
The statute of limitations for survival and wrongful death actions is two
years. See 42 Pa.C.S.A. § 5524(2).
Here, the trial court determined:
According to [Appellant’s] own binding admissions contained in
his complaint, Marcella died on July 28, 2013. [Appellant] did
not file his complaint until September 22, 2016, more than three
years after the date of Marcella’s death. Although [Appellant]
baldly argues that the statute of limitations in this matter is
governed under the discovery rule, it is well-settled in this
Commonwealth that the two-year statute of limitations
applicable to wrongful death and survival actions under 42
Pa.C.S.A. § 5524(2) may not be extended by the discovery rule,
and that the latest date on which the statute of limitations
begins to run for wrongful death and survival claims is the date
of the decedent’s death.
* * *
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Since the two-year statute of limitations had already expired at
the time that [Appellant] amended the writ of summons and filed
the complaint[,] they must be stricken.
Trial Court Opinion, 3/1/2017, at 13-15 (record and case citations, internal
quotations, and footnote omitted).
We agree with the trial court and discern no error of law. The statute
of limitations for survival and wrongful death actions is two years. 42
Pa.C.S.A. § 5524. The discovery rule is not applicable to survival and
wrongful death actions as recently reaffirmed by our Supreme Court in
Dubose. Appellant averred that his mother died on July 28, 2013.
Therefore, his writ of summons, dated August 10, 2016, and subsequent
complaint, dated September 22, 2016, were filed after the two-year statute
of limitations had already expired. There were no additional factual
determinations necessary. Thus, as a matter of law, the trial court properly
sustained Lizza’s preliminary objections and struck the complaint. As a
result of this disposition, we need not address Appellant’s remaining
contentions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/13/2018
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