Ryan, K. v. McMullin, D.

J-S15014-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KAYLEY RYAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAVID K. MCMULLIN, : No. 1334 WDA 2018
ADMINISTRATOR OF THE ESTATE OF :
ZACHARY HOHMAN, DECEASED :
Appeal from the Order Entered September 4, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-16-023331
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED APRIL 15, 2019
This matter is an appeal filed by plaintiff Kayley Ryan (Plaintiff) from an
order of the Court of Common Pleas of Allegheny County (trial court) granting
summary judgment in favor of the defendant, David K. McMullin,
Administrator of the Estate of Zachary Hohman, deceased (Defendant), on the
ground that the action was barred by the statute of limitations. For the
reasons set forth below, we affirm.
This personal injury action arose out of a motor vehicle accident that
occurred in Turtle Creek Borough, Pennsylvania on July 13, 2014, when the
car in which Plaintiff was riding was rear-ended at a red light by a car driven
by Zachary Hohman (Decedent). Decedent passed away on April 8, 2015 from
a cause unrelated to the accident. On July 7, 2016, Plaintiff commenced an
action against Decedent in the trial court at Docket No. GD-16-012221. After
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* Retired Senior Judge assigned to the Superior Court.
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learning, on August 17, 2016, that Decedent was not alive, Plaintiff on
September 16, 2016 filed a petition with the Register of Wills to compel
administration of Decedent’s estate, and on October 18, 2016, Defendant was
appointed administrator of Decedent’s estate. Plaintiff petitioned to amend
her complaint in the GD-16-012221 action to substitute Defendant for
Decedent. That petition was denied on November 29, 2016 on the ground
that an action against a deceased defendant is a nullity. The July 7, 2016 GD-
16-012221 action is not before this Court in this appeal.
Plaintiff commenced this action against Defendant on December 2,
2016, more than two years after the accident and more than one year after
Decedent’s death. Defendant filed preliminary objections seeking dismissal of
the complaint on the ground that it was barred by the statute of limitations.
Plaintiff argued in response that Defendant was estopped from asserting the
statute of limitations on grounds of fraudulent concealment because
Decedent’s insurer had not told her counsel that Decedent had died. Plaintiff
alleged in this response, which was verified by counsel, that her counsel and
Decedent’s insurer had exchanged letters after the accident and that the
insurer’s letters had continued to reference Decedent’s name in 2015 and
2016 after his death. Plaintiff’s Points in Opposition to Preliminary Objections
¶¶2-9, 12. Plaintiff also alleged that on June 27, 2016, the insurer gave or
confirmed an address for Decedent in response to her counsel’s telephone
request to verify the address where Decedent was living. Id. ¶13. On
February 8, 2017, the trial court overruled Defendant’s preliminary objections
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without opinion. Plaintiff, in her reply to Defendant’s new matter raising the
statute of limitations as a defense, denied that her claims were barred by the
statute of limitations, but did not plead any facts concerning her claim of
fraudulent concealment. Plaintiff’s Reply to New Matter ¶2.
On June 29, 2018, following discovery, Defendant filed a motion for
summary judgment asserting that the action was barred by the statute of
limitations as a matter of law and the failure of the insurer to notify a plaintiff
of the death of its insured does not constitute fraudulent concealment.
Plaintiff in response did not submit any affidavit, deposition testimony,
discovery responses, or documents received from Decedent’s insurer to show
that her counsel had been misled by Decedent’s insurer or deterred from filing
suit earlier. Instead, Plaintiff submitted an unverified response to the motion
and supporting brief that reiterated the factual allegations in her response to
Defendant’s preliminary objections.1 Plaintiff attached to her response
documents authored by her own counsel, but did not attach any documents
sent to her counsel by Decedent’s insurer. On September 4, 2018, the trial
court granted Defendant’s motion for summary judgment and dismissed
Plaintiff’s complaint.
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1 Plaintiff also argued in her response that summary judgment on statute of
limitations grounds could not be granted because the trial court had denied
Defendant’s preliminary objections. This argument was utterly without merit.
The law is clear that the law of the case doctrine and the coordinate jurisdiction
rule do not bar a judge from granting summary judgment on a legal issue as
to which preliminary objections were previously overruled. K.H. ex rel. H.S.
v. Kumar, 122 A.3d 1080, 1091-92 (Pa. Super. 2015); Silvagni v. Shorr,
113 A.3d 810, 816 (Pa. Super. 2015).
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Plaintiff timely appealed the trial court’s order to this Court. Plaintiff
presents only one issue for our review:
Whether the trial court committed legal error in granting the
defense motion for summary judgment, where it applied incorrect
legal standards and/or overlooked contrary controlling law in
analyzing the applicable rules and law governing both the grant
or denial of a summary judgment motion, and settled decisional
law regarding the proper tolling of the statute of limitations where
estoppel is raised as a bar to the limitations defense.
Appellant’s Br. at 5 (unnecessary capitalization omitted). Our standard of
review of the trial court’s grant of summary judgment is de novo and the scope
of review is plenary. Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa.
2011). We conclude that the trial court correctly applied the legal standards
governing summary judgment and the statute of limitations, including the law
governing estoppel for fraudulent concealment, and therefore affirm.
There is no dispute that the statute of limitations expired before Plaintiff
filed this action. Actions “to recover damages for injuries to the person …
caused by the wrongful act or neglect or unlawful violence or negligence of
another” are subject to a two-year statute of limitations. 42 Pa.C.S. §
5524(2). The fact that the plaintiff was unaware that the defendant had died
does not toll the statute of limitations. 20 Pa.C.S. § 3383; McClean v.
Djerassi, 84 A.3d 1067, 1070 (Pa. Super. 2013); Lange v. Burd, 800 A.2d
336, 341-42 (Pa. Super. 2002). Furthermore, the fact that the plaintiff
unsuccessfully brought an action against the decedent before the statute of
limitations expired does not toll the statute of limitations or permit an action
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against his estate after the limitation period has expired. Lange, 800 A.2d
at 341.
The Probate, Estates and Fiduciaries Code provides that if the defendant
dies less than one year before the statute of limitations would expire, an action
against the defendant’s estate is not barred if it is filed within one year after
the defendant’s death. 20 Pa.C.S. § 3383 (“The 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”); McClean, 84 A.3d at 1070; Lange, 800 A.2d at 341. That
extension of the limitation period, however, is not applicable here because
Decedent died in April 2015, more than a year before the two-year statute of
limitations expired, and the one-year period from his death expired more than
seven months before this action was commenced.
Rather, Plaintiff argues that summary judgment could not be granted
because Defendant was barred from asserting the statute of limitations by
fraudulent concealment. Where a defendant or his agent actively misleads
the plaintiff as to the identity of the proper defendant until after the statute
of limitations expires, the defendant is estopped from invoking the statute of
limitations with respect to the time period during which the plaintiff was
deceived. McClean, 84 A.3d at 1070; Lange, 800 A.2d at 339; Montanya
v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000); see also Molineux v.
Reed, 532 A.2d 792, 794 (Pa. 1987) (“Where, ‘through fraud or concealment,
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the defendant causes the plaintiff to relax his vigilance or deviate from his
right of inquiry,’ the defendant is estopped from invoking the bar of the statute
of limitations”) (quoting Schaffer v. Larzelere, 189 A.2d 267 (Pa. 1963)).
The burden of proof on this issue is on the plaintiff, however, not the
defendant. The plaintiff must prove by clear and convincing evidence that the
defendant or his agent made an affirmative misrepresentation or committed
an affirmative act of concealment on which the plaintiff justifiably relied.
Molineux, 532 A.2d at 794; McClean, 84 A.3d at 1070; Lange, 800 A.2d at
339; Montanya, 757 A.2d at 951. Mere silence by the defendant or his agent
in the absence of a duty to speak does not bar the defendant from asserting
the statute of limitations. McClean, 84 A.3d at 1070; Lange, 800 A.2d at
339. While intent to deceive need not be shown, mere mistake or
misunderstanding by the plaintiff is not sufficient. Molineux, 532 A.2d at
794; McClean, 84 A.3d at 1070; Lange, 800 A.2d at 339.
Plaintiff claims that Defendant was estopped from asserting the statute
of limitations because Decedent’s insurer continued to reference its insured’s
name on correspondence with her counsel after April 8, 2015 and did not
advise her counsel in those letters that Decedent had passed away. Those
allegations are insufficient as a matter of law to constitute fraudulent
concealment. Lange, 800 A.2d at 340; Montanya, 757 A.2d at 951-52. An
insurer has no duty to notify opposing counsel of its insured’s death. Lange,
800 A.2d at 340; Montanya, 757 A.2d at 952. In Lange and Montanya,
this Court specifically held that using the insured’s name in correspondence
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after his death does not constitute an affirmative representation that the
insured is alive and does not bar the defendant from raising the statute of
limitations or excuse the plaintiff’s failure to timely sue the proper party.
Lange, 800 A.2d at 340; Montanya, 757 A.2d at 951. Plaintiff’s claims
concerning Decedent’s insurer’s correspondence are indistinguishable from
Lange and Montanya. Plaintiff did not allege in response to Defendant’s
summary judgment motion that any of the insurer’s letters did more than
reference Decedent’s name. Plaintiff made no allegation that the insurer’s
correspondence contained any affirmative statement that Decedent was alive,
let alone submit any affidavit, deposition testimony or document sent by the
insurer that showed any such affirmative representation.
Plaintiff also contends that on June 27, 2016, her counsel asked the
insurer in a telephone call to verify the address where the defendant was living
and that the insurer in response gave him an address for Decedent or
confirmed the address that counsel had. Even if this unsworn assertion in an
unverified pleading could be considered in response to a summary judgment
motion,2 it was not sufficient to satisfy Plaintiff’s burden of proving fraudulent
concealment. Plaintiff does not contend that her counsel asked the insurer if
Decedent was alive and was told that he was alive. Rather, she contends that
counsel asked about an address for Decedent and that the insurer gave or
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2 See Pa.R.C.P. 1035.2(2), 1035.3(a)(2) (party opposing summary judgment
who bears the burden of proof on an issue must submit evidence to show that
it can meet its burden of proof).
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confirmed an address. Plaintiff submitted no evidence that the insurer knew
that Decedent had died or that the address was invalid at the time of the
conversation or at any time before the statute of limitations expired 16 days
later, on July 13, 2016.3 Absent evidence that the insurer knew in this time
frame that the Decedent was no longer alive or that the address was invalid,
simply providing an address in response to a request for an address does not
constitute an affirmative misrepresentation that Decedent was alive and does
not estop Defendant from asserting the statute of limitations. Compare Diaz
v. Schultz, 841 A.2d 546, 549-51 (Pa. Super. 2004) (defendant estopped
from asserting statute of limitations where insurer failed to respond to direct
question concerning the identity of the driver of the vehicle despite learning
that owner was not the driver two days later and answer to complaint
identifying driver was filed after statute of limitations ran even though answer
was due before limitation period expired).
Moreover, even if this conversation had misled Plaintiff’s counsel, it
cannot excuse the delay in filing suit against the correct defendant that
occurred here. Plaintiff admits that the insurer, in response to inquiries after
the statute of limitations expired, told her counsel on August 17, 2016 that
Decedent had died on April 8, 2015. Therefore, even if the alleged June 27,
2016 conversation caused Plaintiff’s counsel to believe that Decedent was alive
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3 Plaintiff did not assert in her Pa.R.A.P. 1925(b) statement that she did not
have adequate time to take discovery to support her fraudulent concealment
claim in the period of over a year between the denial of Defendant’s
preliminary objections and the filing of the summary judgment motion.
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and that he did not have make any further investigation in that regard, he
was misled for only a period of 52 days. Plaintiff, however, did not file suit
against Defendant within 52 days after learning that she had sued a non-
existent party. This action was not commenced until December 2, 2016, three
and one-half months after her counsel was fully aware of Decedent’s demise.
Because the undisputed facts established that this action was filed after
the applicable statutes of limitations had expired and Plaintiff’s allegations
concerning Decedent’s insurer’s conduct are insufficient as a matter of law to
satisfy her burden to show affirmative misrepresentation or an affirmative act
of concealment by clear and convincing evidence, we affirm the trial court’s
grant of summary judgment in Defendant’s favor.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2019
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