Kasych, A. v. Butz, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTATE OF ANNA C. KASYCH, : IN THE SUPERIOR COURT OF
DECEASED C/O MILDRED CALKINS, : PENNSYLVANIA
ADMINISTRATRIX :
:
v. :
:
EDWARD H. BUTZ, ESQUIRE, LEVSAVOY :
BUTZ & SEITZ, LLC., ST. LUKE'S HEALTH :
NETWORK, INC., AND ST. LUKE'S :
HOSPITAL ALLENTOWN CAMPUS :
:
APPEAL OF: MILDRED CALKINS :
: No. 646 EDA 2015
Appeal from the Order Entered February 13, 2015
In the Court of Common Pleas of Lehigh County
Civil Division No(s): 2014-C-0961
BEFORE: MUNDY, JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 26, 2016
Appellant, Estate of Anna C. Kasych, Deceased, c/o Mildred Calkins,
Administratrix, appeals from the order entered in the Lehigh County Court of
Common Pleas sustaining the preliminary objections filed on behalf of
Appellees, Edward H. Butz, Esquire, (“Butz”) and Lesavoy, Butz & Seitz, LLC
(“LB&S”), and the preliminary objections filed on behalf of Appellees, St.
Luke’s Health Network, Inc., and St. Luke’s Hospital-Allentown Campus (“St.
Luke’s”) and dismissing the complaint. Appellant contends the trial court
*
Former Justice specially assigned to the Superior Court.
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erred in dismissing the complaint on the basis that the claims were brought
by the Estate of Anna C. Kasych. We affirm.
Decedent Anna C. Kasych died on December 21, 2013. Mildred
Calkins was appointed the Administratrix of the Estate on February 7, 2014.
On June 25, 2014, Appellant filed a complaint against Appellees. Appellant
averred claims against Butz and LB&S for breach of contract, professional
malpractice, and breach of fiduciary duty. Appellant stated claims against
St. Luke’s for unjust enrichment/request for imposition of constructive trust,
equitable reformation, and for a preliminary and permanent injunction.
Butz & LB&S filed preliminary objections to the complaint on July 14,
2014. St. Luke’s filed preliminary objections to the complaint on July 16,
2014. The trial court held a hearing on the preliminary objections on August
18, 2014. On February 12, 2015, the trial court sustained Appellees’
preliminary objections and dismissed the complaint.
This timely appeal followed. Appellant was not ordered to file a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
I. Whether the Trial Court erred in sua sponte dismissing
the complaint on the ground that the caption named the
wrong Plaintiff and the Complaint otherwise failed to state
claims for breach of contract and professional malpractice
where the Objecting [Appellees] expressly withdrew their
objection to the caption, and they never filed any
preliminary objections as to Plaintiff’s breach of contract
and professional malpractice claims?
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II. Whether the Trial Court erred in dismissing the
Complaint on the ground that the claims were brought by
the Estate of Anna C. Kasych, instead of by the
Administratrix, Mildred Calkins, where (a) Mildred Calkins
was named as the Plaintiff in the Complaint on behalf of
the Estate; (b) where Mildred Calkins’s name appears in
the caption as Plaintiff; (c) where Mildred Calkins, as the
Administratrix, was named as the only plaintiff in
paragraph 14 of the Complaint; (d) where the Trial Court’s
certified docket itself identifies “Calkins, Mildred,
Administratrix of the Estate of Anna C. Kasych” as a
Plaintiff, and (e) where the parties entered into a
stipulation amending the caption to clarify any perceived
ambiguities in the caption?
III. Whether the Trial Court erred in dismissing
[Appellant’s] claims for breach of contract, professional
malpractice, and breach of fiduciary duty against the
attorney defendants by a [sic] applying a non-profit or
charitable giving exception to a lawyer’s duty to a client to
provide advice that is free from non-disclosed conflicts of
interest?
IV. Whether the Trial Court erred in dismissing
[Appellant’s] claims for unjust enrichment against the St.
Luke’s defendants, by finding that no benefit was unjustly
conferred on St. Luke’s, where, by the advice of
compromised counsel, Anna Kasych’s joint tenancy with
right of survivorship was converted into a tenancy in
common, permitting St. Luke’s to receive a benefit from
property that otherwise would have gone directly to Anna
Kasych outside of probate?
V. Whether the Trial Court erred in dismissing [Appellant’s]
claim for equitable reformation against the St. Luke’s
defendants, where equitable reformation of the deeds of
the real property in question would be available as a
remedy under the facts of this case?
Appellant’s Brief at 4-5.
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We address issues one and two together because they are interrelated.
Appellant argues that the court erred in ruling on the preliminary objection,
viz., failure to name the proper party in the caption, because “counsel for
Butz unambiguously withdrew this objection on the record during the August
18, 2014 oral argument.” Appellant’s Brief at 30. Appellant contends that
the correct plaintiff was identified in the complaint. Id. at 33. Appellant
concedes that actions on behalf of estates must be brought by the personal
representative. Id. Appellant cites paragraph fourteen of the complaint1 in
support of the claim. Id. at 34. Paragraph 14 provides: “Plaintiff, Mildred
Calkins, is the Administratrix of the Estate of Anna C. Kasych (the “Estate”)
who died on December 21, 2013 . . . . Mildred Calkins was appointed the
Administratrix of the Estate by the Lehigh County Orphans’ Court on
February 7, 2014 . . . .” Id.
Appellant claims the trial court erred in dismissing the complaint
“based on the an [sic] alleged erroneous caption─without leave to amend
and in derogation of the parties’ own stipulation to amend─was clearly in
error and cannot withstand scrutiny.” Id. at 38.
1
We note that the notice to defend names the “Estate of Anna C. Kasych,
Deceased, et al.” as the Plaintiff. R.R. at 121a. We refer to the reproduced
record for convenience. In the introductory paragraph of the complaint,
Appellant avers: “Plaintiff, the Estate of Anna C. Kasych, Deceased
(“Estate”), by and through undersigned counsel . . . comes now and
complains against Defendants as follows:” Id. at 123a. Appellant avers in
the complaint that “the Estate now brings the instant action . . . .” Id. at
125a.
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Our review is governed by the following principles:
A preliminary objection in the nature of a demurrer is
properly [sustained] where the contested pleading is
legally insufficient. Preliminary objections in the nature of
a demurrer require the court to resolve the issues solely
on the basis of the pleadings; no testimony or other
evidence outside of the complaint may be considered
to dispose of the legal issues presented by the
demurrer. All material facts set forth in the pleading and
all inferences reasonably deducible therefrom must be
admitted as true.
In determining whether the trial court properly sustained
preliminary objections, the appellate court must examine
the averments in the complaint, together with the
documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred. The impetus
of our inquiry is to determine the legal sufficiency of the
complaint and whether the pleading would permit recovery
if ultimately proven. This Court will reverse the trial
court’s decision regarding preliminary objections only
where there has been an error of law or abuse of
discretion. When sustaining the [preliminary objections]
will result in the denial of claim or a dismissal of suit, [the
preliminary objections may be sustained] only where the
case [is] free and clear of doubt.
Hill v. Ofalt, 85 A.3d 540, 547-48 (Pa. Super. 2014) (emphasis added and
citation omitted).
“[A]ll actions that survive a decedent must be brought by or against
the personal representative[2] of the decedent’s estate.” Prevish v.
2
The term personal representative is defined as “the executor or
administrator of the estate of a decedent duly qualified by law to bring
actions within this Commonwealth.” Pa.R.C.P. 2201.
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Nw. Med. Ctr. Oil City Campus, 692 A.2d 192, 200 (Pa. Super. 1997) (en
banc) (emphasis added); see also 20 Pa.C.S. § 3373.3
It is fundamental that an action at law requires a
person or entity which has the right to bring the
action, and a person or entity against which the
action can be maintained. By its very terms, an
action at law implies the existence of legal parties;
they may be natural or artificial persons, but they
must be entities which the law recognizes as
competent. 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. . . .
[Thompson v. Peck, 181 A. 597, 598 ([Pa.] 1935).]
(citations omitted) (emphases added). Thompson has
been consistently followed. See e.g., Ehrhardt v.
Costello, [ ] 264 A.2d 620, 621–22 ([Pa.] 1970); Lange
[v. Burd], 800 A.2d [336,] 341 [(Pa. Super. 2000)];
Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super.
2000); Valentin v. Cartegena, [ ] 544 A.2d 1028, 1029
([Pa. Super.] 1988); Longo v. Estep, [ ] 432 A.2d 1029,
1030 ([Pa. Super.] 1981). “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,
757 A.2d at 950.
In the instant matter, we hold that [the a]ppellant’s
original complaint against Defendant was “void and of no
effect,” as Defendant was deceased at the time of filing.
See Thompson, 181 A. at 598; Valentin, 544 A.2d at
1029. Appellant’s insistence that he was entitled to amend
the complaint in order to substitute the Estate as
3
Section 3373 provides: “An action or proceeding to enforce any right or
liability which survives a decedent may be brought by or against his personal
representative alone or with other parties as though the decedent were
alive.”
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defendant is mistaken; Thompson clearly states a
complaint against a deceased defendant cannot be
cured by amendment. See Thompson, 181 A. at 598.
Appellant’s only recourse was to file a new
complaint against the Estate. See Montanya, 757
A.2d at 950.
McClean v. Djerassi, 84 A.3d 1067, 1071 (Pa. Super. 2013) (some
emphasis added).4
Instantly, the trial court opined:
First and foremost, an estate of the deceased is not a
proper party.
* * *
The caption should read Mildred Calkins, Administratrix of
the Estate of Anna Kasych.
* * *
The remaining preliminary objections do not need to be
addressed because the action is void as the Estate of
Anna Kasych is the only clearly named party and an
estate is not the proper party to a lawsuit.
R.R. at 410-11 (emphasis added).
Instantly, Appellant’s claims regarding the oral arguments held on
August 18th are unavailing. See Hill, 85 A.3d at 547-48. Appellant’s
complaint was “void and of no effect,” as Decedent was deceased at the time
4
We note that Appellant filed another cause of action in Lehigh County. On
March 16, 2015, Appellant filed a Praecipe for Writ of Summons, followed by
a Complaint on April 15th, captioned as Mildred Calkins, Administratrix of
the Estate of Anna C. Kasych, Deceased, Anna C. Kasych, Estate v. Edward
H. Butz, Esquire, Lesavoy, Butz & Seitz, LLC, St. Luke’s Health Network,
Inc., St. Luke’s Hospital─Allentown Campus─Civil Action No. 2015-C-0809
(C.C.P. Lehigh County, Pennsylvania-Civil Division).
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of filing. See McClean, 84 A.3d at 1071; Prevish, 692 A.2d at 200.
Appellant’s claim that the court erred in dismissing the complaint without
leave to amend is meritless. See McClean, 84 A.3d at 1071. Appellant’s
only recourse was to file a new complaint. See id. We discern no abuse of
discretion or error of law by the trial court in dismissing the complaint. See
Hill, 85 A.3d at 547-48.
Given our resolution of the first two issues, we need not address the
remaining issues raised on appeal. Accordingly, we affirm the order
sustaining the preliminary objections and dismissing the complaint.
Order affirmed.
Jenkins, J. has joined the Memorandum.
Mundy, J. files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2016
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