Vinciguerra, A. v. Tunstall, G. ( 2016 )


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  • J-S65042-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    AMBER VINCIGUERRA,                                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    GEORGE TUNSTALL,
    Appellee                     No. 403 WDA 2016
    Appeal from the Order February 17, 2016
    in the Court of Common Pleas of Allegheny County
    Civil Division at No.: GD-12-019371
    BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                           FILED: September 23, 2016
    Appellant, Amber Vinciguerra, appeals from the order of February 17,
    2016, which dismissed her tort action against Appellee, George Tunstall. On
    appeal, Appellant argues that the trial court erred in concluding that her
    lawsuit was a legal nullity because Appellee died prior to its filing, and that
    the statute of limitations barred her claims.          For the reasons discussed
    below, we affirm.
    We take the underlying facts and procedural history in this matter
    from the trial court’s February 17, 2016 opinion and our independent review
    of the certified record. On October 15, 2010, a vehicle driven by Appellee
    struck Appellant’s automobile.          (See Trial Court Opinion, 2/17/16, at 1).
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    J-S65042-16
    Nationwide Mutual Insurance Company (Nationwide) insured Appellee’s car
    under an automobile insurance policy.        (See id.).   In November 2010,
    Appellant, through counsel, and Nationwide entered into communication
    regarding the incident. (See Praecipe for Writ of Summons, 10/12/12; see
    also Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at
    unnumbered page 1). On February 6, 2012, Appellee died. (See Trial Ct.
    Op., at 1).
    Appellant instituted the instant action, by way of a writ of summons on
    October 12, 2012, three days prior to the expiration of the statute of
    limitations. (See Appellee’s Brief in Support of Motion to Dismiss, 8/26/15,
    at unnumbered page 2).         On October 16, 2012, the Allegheny County
    Sheriff’s Office notified Appellant that it was unable to effect service because
    Appellee was deceased.         (See Appellant’s Response in Opposition to
    [Appellee’s] Motion to Dismiss, 7/02/15, at 3). Appellant has been unable to
    effect service and has never filed a complaint.
    On January 18, 2013, Appellant filed a petition for citation to direct
    that the heir(s) of George H. Tunstall open an estate, that a personal
    representative be appointed and that letters of administration be issued by
    the register of wills.   (See id. at 3-4).   Subsequently, the Orphans’ Court
    issued a citation directing Appellee’s wife to show cause as to why she
    should not be appointed administratrix of Appellee’s estate.       (See id. at
    Exhibit B).   It appears that no further action has occurred with respect to
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    that petition. (See Trial Ct. Op., at 2). On February 26, 2013, Appellant
    notified Nationwide that Appellee had died. (See Appellee’s Brief in Support
    of Motion to Dismiss, 8/26/15, at unnumbered page 2).
    On May 29, 2015, Appellee’s counsel, filed a “motion to dismiss.” The
    trial court denied the motion on procedural grounds that same day. On June
    2, 2015, Appellee filed a suggestion of death. On June 16, 2015, Appellee
    filed a second “motion to dismiss,” arguing that the action was a legal nullity
    because Appellee had died before Appellant filed it and that the statute of
    limitations had expired. (See Motion to Dismiss, 6/16/15, at unnumbered
    page 2). On June 16, 2015, the trial court issued an order stating, in part,
    “the petition/motion shall be decided under Pa.R.C.P. 206.7[1]”. (Order of
    ____________________________________________
    1
    Pennsylvania Rule of Civil Procedure 206.7, procedures after issuance of a
    rule to show cause, provides:
    (a) If an answer is not filed, all averments of fact in the
    petition may be deemed admitted for the purposes of this
    subdivision and the court shall enter an appropriate order.
    (b) If an answer is filed raising no disputed issues of
    material fact, the court on request of the petitioner shall decide
    the petition on the petition and answer.
    (c) If an answer is filed raising disputed issues of material
    fact, the petitioner may take depositions on those issues, or such
    other discovery as the court allows, within the time set forth in
    the order of the court. If the petitioner does not do so, the
    petition shall be decided on petition and answer and all
    averments of fact responsive to the petition and properly
    pleaded in the answer shall be deemed admitted for the purpose
    of this subdivision.
    (Footnote Continued Next Page)
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    Court, 6/16/15, at unnumbered page 1).              On July 2, 2015, Appellant filed a
    response arguing that Appellee was equitably estopped from raising a
    statute of limitations defense; that by attempting to secure the appointment
    of a personal representative Appellant acted in good faith; and, therefore,
    the action should not be dismissed. (See Appellant’s Response in Opposition
    to [Appellee’s] Motion to Dismiss, 7/02/15, at 5-11).
    On February 17, 2016, the trial court granted the “motion to dismiss.”
    The instant, timely appeal followed.             On March 23, 2016, the trial court
    ordered Appellant to file a concise statement of errors complained of on
    appeal.    See Pa.R.A.P. 1925(b).            Appellant filed a timely Rule 1925(b)
    statement on April 12, 2016. See id. On May 4, 2016, the trial court issued
    an order adopting its February 17, 2016 opinion. See Pa.R.A.P. 1925(a).
    On appeal, Appellant raises the following questions for our review:
    1. Did the trial court abuse its discretion and/or commit legal
    error by dismissing Appellant’s case by way of Pa.R.C.P.
    206.7?
    2. Did the trial court err by failing to correctly consider and/or
    apply the [d]octrine of [e]quitable [e]stoppel as it pertains to
    the tolling of the statute of limitations and decedent’s
    insurer’s duty to notify Appellant of decedent’s death?
    _______________________
    (Footnote Continued)
    (d) The respondent may take depositions, or such other
    discovery as the court allows.
    Pa.R.C.P. 206.7.
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    3. Did the trial court err when it failed to consider Appellant’s
    equity argument that the [p]etition for [c]itation tolled the
    statute of limitations and/or that the relation back doctrine
    should apply?
    (Appellant’s Brief, at 5).
    Appellant appeals from the trial court’s grant of Appellee’s “motion to
    dismiss.” Initially, we note that, in its motion, Appellee did not identify the
    rule of civil procedure that permits a “motion to dismiss.” (See Motion to
    Dismiss, 6/16/15, at unnumbered pages 1-2). Further, in its decision, the
    trial court did not specify a scope and standard of review.      (See Trial Ct.
    Op., at 1-2). In a recent decision, when faced with the grant of a similarly
    non-specific “motion to dismiss,” which, like the motion in the instant
    matter, argued a statute of limitations defense, this Court treated the
    “motion to dismiss” as preliminary objections and reviewed the decision
    under that standard. See Rellick-Smith v. Rellick, — A.3d —, 
    2016 WL 4435625
    , at *3 (Pa. Super. filed Aug. 22, 2016). We will do likewise.
    Our scope and standard of review are well-settled.
    In determining whether the [trial c]ourt properly granted the
    [Appellee’s] preliminary objections (i.e., the [m]otion to
    [d]ismiss), we review the ruling for an error of law or abuse of
    discretion. On appeal from an order sustaining preliminary
    objections, we accept as true all well-pleaded material facts set
    forth in the appellant’s [documentation] and all reasonable
    inferences which may be drawn from those facts. Preliminary
    objections seeking dismissal of a cause of action should be
    sustained only in cases in which it is clear and free from doubt
    that the pleader will be unable to prove facts legally sufficient to
    establish the right to relief; if any doubt exists, it should be
    resolved in favor of overruling the objections.
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    Id.
     (citations and quotation marks omitted).
    In her first issue, Appellant claims that because Pennsylvania law does
    not recognize a “motion to dismiss” in the context of civil litigation, the trial
    court erred in not treating it as either a motion for summary judgment or a
    motion for judgment on the pleadings.           (Appellant’s Brief, at 16-17).
    Appellant further asserts that it was improper to dismiss the action now
    because she has not filed a complaint or been able to conduct proper
    discovery. (See id. at 17). However, Appellant has waived this claim.
    Appellant did not raise this issue either in her response to Appellee’s
    motion to dismiss or in her reply brief to the motion to dismiss.          (See
    Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss,
    7/02/15, at 5-11; [Appellant’s] Reply Brief in Opposition to [Appellee’s] Brief
    in Support to Motion to Dismiss, 9/17/15, at 2-8).        We have consistently
    held that issues raised for the first time on appeal are waived. See Yenchi
    v. Ameriprise Fin., Inc., 
    123 A.3d 1071
    , 1081 (Pa. Super 2015), appeal
    granted, 
    134 A.3d 51
     (Pa. 2016); see also Pa.R.A.P. 302(a) (“Issues not
    raised in the lower court are waived and cannot be raised for the first time
    on appeal.”).
    Further, this claim is not included in Appellant’s Rule 1925(b)
    statement.   (See Appellant’s Concise Statement of [Errors] Complained of
    on Appeal Pursuant to Rule 1925(b), 4/12/16, at unnumbered pages 1-2).
    As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925
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    provides that issues that are not included in the Rule 1925(b) statement or
    raised in accordance with Rule 1925(b)(4) are waived.          See Pa.R.A.P.
    1925(b)(4)(vii); see also Commonwealth v. Lord, 
    719 A.2d 306
    , 308 (Pa.
    1998), superseded by rule on other grounds as stated in Commonwealth v.
    Burton, 
    973 A.2d 428
    , 431 (Pa. Super. 2009). Thus, for these reasons,
    Appellant has waived her first issue.
    In her second issue, Appellant argues that the trial court erred by not
    applying the doctrine of equitable estoppel, which would have tolled the
    statute of limitations. (See Appellant’s Brief, at 18-27). We disagree.
    It is black-letter law that
    [a] dead man cannot be a party to an action, and any such
    attempted proceeding is completely void and of no effect.
    Moreover, because a dead person cannot be a party to an action
    commenced after his death, substitution of a personal
    representative of the dead person’s estate is improper. If a
    plaintiff commences an action against a person who has
    previously deceased, the only recourse is to file a new action
    naming the decedent’s personal representative as the defendant.
    Montanya v. McGonegal, 
    757 A.2d 947
    , 950 (Pa. Super. 2000) (citations
    omitted).
    Here, there is no dispute that Appellant filed the instant action on
    October 12, 2012, over eight months after the death of Appellee. Further,
    Appellant did not name Appellee’s personal representative2 as a defendant.
    ____________________________________________
    2
    We note that the record is devoid of evidence that the Orphans’ Court ever
    appointed a personal representative.
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    Since Appellant cannot substitute Appellee’s personal representative, even if
    such person existed, her only option would be to file a new action. See 
    id.
    However, the two-year statute of limitations has expired. See 42 Pa.C.S.A.
    § 5524. Moreover, Appellant did not file any action against the estate within
    one year of Appellee’s death.3
    Despite this, Appellant argues that Nationwide either intentionally or
    unintentionally concealed the information of Appellee’s death from her and
    that, therefore, we should equitably toll the statute of limitations.        (See
    Appellant’s Brief, at 20-21). We disagree.
    Fraudulent concealment of the identity of the proper defendant can toll
    the running of the statute of limitations. See Krapf v. St. Luke’s Hospital,
    
    4 A.3d 642
    , 649-50 (Pa. Super. 2010), appeal denied, 
    34 A.3d 831
     (Pa.
    2011) (citation omitted); see also Montanya, 
    supra at 950-51
    .
    The doctrine is based on a theory of estoppel, and provides
    that the defendant may not invoke the statute of limitations, if
    through fraud or concealment, he causes the plaintiff to relax his
    ____________________________________________
    3
    Pennsylvania law provides that:
    [t]he death of a person shall not stop the running of the statute
    of limitations applicable to any claim against him, but a claim
    which otherwise would be barred within one year after the death
    of the decedent shall not be barred until the expiration of one
    year after his death. Nothing in this section shall be construed
    to shorten the period which would have been allowed by any
    applicable statute of limitations if the decedent had continued to
    live.
    20 Pa.C.S.A. § 3383.
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    vigilance or deviate from his right of inquiry into the facts. The
    doctrine does not require fraud in the strictest sense
    encompassing an intent to deceive, but rather, fraud in the
    broadest sense, which includes an unintentional deception. The
    plaintiff has the burden of proving fraudulent concealment by
    clear, precise, and convincing evidence.
    Krapf, 
    supra at 650
     (citations omitted). Further,
    [t]he defendant must have committed some affirmative
    independent act of concealment upon which the plaintiffs
    justifiably relied.    Mere mistake or misunderstanding is
    insufficient. Also mere silence in the absence of a duty to speak
    cannot suffice to prove fraudulent concealment.
    Lange v. Burd, 
    800 A.2d 336
    , 339 (Pa. Super. 2002), appeal denied, 
    818 A.2d 504
     (Pa. 2003) (citations omitted).
    Here, Appellant has not pointed to a single “affirmative independent
    act of concealment” by Nationwide.         While Appellant complains that
    Nationwide negotiated with her for eight months without informing her of
    Appellee’s death, (see Appellant’s Brief, at 22), she points to nothing in the
    record which demonstrates that Nationwide had any knowledge of Appellee’s
    death.   Further, while Appellant claims she “was justified in relying on
    Nationwide’s misrepresentations[,]” she fails to specify their exact nature.
    (Id. at 23).
    In Montanya, supra, the appellants claimed that the appellee’s widow
    and his insurance company actively concealed the fact of his death until
    after the running of the statute of limitations.    See Montanya, 
    supra at 951
    . In support of this contention, the appellants contended that the widow
    accepted service of the complaint without informing the sheriff that appellee
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    was deceased and pre-suit correspondence with the insurance carrier
    indicated that the appellee was alive, although they admitted the insurance
    carrier never expressly said so.    See 
    id.
       We disagreed, finding that the
    widow’s silence did not constitute an affirmative act, that there was no
    evidence that the insurance carrier was aware of the appellee’s death, and
    that it was the appellant’s obligation to ascertain whether the Appellee was
    deceased. See 
    id.
     We concluded:
    . . . this Court has held that some affirmative independent act of
    concealment upon which the [appellants] justifiably relied must
    have been committed.         Here, the insurance carrier’s mere
    silence or nondisclosure is insufficient. Simply put, it was the
    [appellants’] duty to ascertain the status of [the appellee] if they
    wanted to proceed properly, the insurance carrier was under no
    duty to inform the [appellants] of the status of their insured.
    
    Id. at 952
     (footnote omitted).
    Similarly, in Lange, 
    supra,
     the appellants argued that the insurance
    carrier fraudulently concealed that the appellee had died prior to the filing of
    suit by sending them letters that referred to the appellee as “Our Insured”
    and by stating that it had a contractual obligation to him. Lange, 
    supra at 339
    . We disagreed, holding that the mere sending of two letters “does not
    constitute the type of concealment to toll the statute of limitations.” 
    Id. at 340
    . We again stated that an insurance company does not have a duty to
    inform the appellants of the status of the insured. See 
    id.
    The instant case presents an even stronger argument for not tolling
    the statute of limitations than in Montanya and Lange, since here the
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    Sheriff notified Appellant that Appellee had died. (See Appellant’s Response
    in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3).      Appellant
    has not pointed to any affirmative action undertaken by Nationwide to
    conceal Appellee’s death, and, in fact, has not pointed to any evidence that
    would demonstrate that Nationwide even was aware of it. (See Appellant’s
    Brief, at 18-27). It was Appellant’s obligation to ascertain Appellee’s status
    prior to filing suit.   See Lange, 
    supra at 340
    ; Montanya, 
    supra at 952
    .
    Appellant failed to do so.      Thus, we find that the trial court correctly
    concluded that the doctrine of fraudulent concealment was inapplicable in
    the instant matter. See Lange, 
    supra at 340
    ; Montanya, 
    supra at 952
    .
    Appellant’s second issue lacks merit.
    In her third issue, Appellant maintains that the trial court erred in
    holding that the filing of a petition for citation in the Orphans’ Court did not
    toll the statute of limitations. (See Appellant’s Brief, at 27-31). Appellant
    contends that we should apply the doctrine of “relation back” to her case.
    (Id. at 28). We disagree.
    In arguing that the relation back doctrine should apply, Appellant
    relies on the Court of Common Pleas of York County’s 1969 decision in
    Stephenson v. Wildasin Estate, 
    48 Pa. D. & C.2d 684
     (York County C.P.
    1969). (See Appellant’s Brief, at 29-31). Initially we note that, “court of
    common pleas decisions provide, at most, persuasive but not binding
    authority.” Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d
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    J-S65042-16
    959, 972 (Pa. Super. 2015).       Moreover, we find that Stephenson is
    inapposite.
    In Stephenson, the plaintiff and the defendant were involved in an
    automobile accident and, thereafter entered into negotiations.           See
    Stephenson, supra at 684. The plaintiff was unaware that the defendant
    died approximately eight months prior to the filing of the complaint; which
    the plaintiff filed four days prior to the expiration of the statute of
    limitations. See id. at 684-85. The sheriff was unable to effect service and
    informed the plaintiff of the defendant’s death. See id. at 685. The next
    day, the plaintiff instituted an action with the register of wills.   See id.
    Approximately twenty days later the register of wills granted letters of
    administration; the plaintiff served a summons on the administrator that
    same day.     See id.   The defendant filed a motion for judgment on the
    pleadings on statute of limitations grounds and the plaintiff argued that the
    appointment of the administrator should be related back to the date on
    which the plaintiff filed the applications for letters, which was within the
    limitations period. See id. Relying on an Ohio case, Wrinkle v. Trabert,
    
    188 N.E.2d 587
     (Ohio 1963), the trial court held that, under the facts of the
    case before it, the administrator’s appointment should relate back to the
    date the plaintiff applied for its appointment. See Stephenson, supra at
    686-88.   However, in so doing, the court noted the importance of diligent
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    action on the part of the plaintiff both in applying for such an appointment
    and in seeing the appointment consummated. See id. at 687.
    Initially, Appellant has pointed to little support for his contention that
    Stephenson reflects the law of this Commonwealth.                 However, even
    assuming, arguendo, that it does, it is factually distinct.       Here, unlike in
    Stephenson, there is no evidence that Nationwide concealed the fact of
    Appellee’s death from Appellant. Rather, it appears that Appellant became
    aware of Appellee’s death months before Nationwide.            (See Appellant’s
    Response in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3;
    Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at unnumbered
    page   2).    Further, unlike    in   Stephenson,     Appellant   herein waited
    approximately three months before filing an action with the register of wills.
    (See Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss,
    7/02/15, at 3-4).     Appellant has provided no explanation for this delay.
    Moreover, the appointment of the personal representative is still pending,
    and Appellant provides no reason for her lack of diligence in pursuing the
    action. (See Trial Ct. Op., at 2).    As the trial court stated in Stephenson,
    [i]f such a party fails through lack of diligence to procure
    such appointment within time to properly urge his claim or, as in
    the present cause, he starts such procedure but fails to see that
    it is consummated, the law should not come to his aid. . . . In
    fact, plaintiff was aware of [the defendant’s death] but failed
    [without explanation], through his own lack of diligence [for
    three and one-half years], to perfect the appointment.
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    Stephenson, supra at 687 (quoting Wrinkle, supra at 590-91) (emphasis
    omitted).   Here, Appellant failed to act with due diligence in pursuing this
    matter, therefore she is not entitled to the benefit of the relation back
    doctrine. See id. at 687; see also Lovejoy v. Georgeff, 
    303 A.2d 501
    ,
    503-04 (Pa. Super. 1973) (declining to apply Stephenson and relation back
    doctrine where plaintiff did not act with due diligence in pursuing action).
    Appellant’s third issue lacks merit.
    Accordingly, for the reasons discussed above, we affirm the dismissal
    of the action.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/23/2016
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Document Info

Docket Number: 403 WDA 2016

Filed Date: 9/23/2016

Precedential Status: Precedential

Modified Date: 9/24/2016