Vinciguerra, A. v. Tunstall, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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*
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
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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.
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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
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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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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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