Prevish v. Northwest Medical Center—Oil City Campus

FORD ELLIOTT, Judge,

dissenting:

I respectfully dissent.¹ I believe that the “relation back” doctrine applies to the facts of this case.

The relevant facts of this case for purposes of the relation back doctrine are as follows. The events giving rise to the survivorship cause of action took place, at latest, on October 15,1992. The decedent died on June 12, 1994, leaving a duly-probated will naming appellant Prevish as executor of the estate. (Appellant’s brief at 4.) The two-year statute of limitations on survivorship actions (see 42 Pa.C.S.A. § 5524) expired on October 15, 1994. Within the statute of limitations period, on September 8,1994, a writ of summons was filed, naming as plaintiff “the Estate of Judith A. Bills, Deceased.” (R.R. la.) On October 5, 1994, defendants caused to be issued a Rule to File Complaint. (R.R. 3a.) On October 11, 1994, plaintiff’s counsel and counsel for Appellee Northwest Medical Center (“NWC”) agreed to waive the requirement that plaintiff file a complaint within 20 days of October 5, 1994. (R.R. 47a.) After further discussions, of the matter and not on the identity of the estate’s executor, counsel for NWC requested that Plaintiffs counsel file a complaint by November 21, 1994. (R.R. 48a, 49a.) On November 15, 1994, Prevish was formally named executor of the estate. (R.R. 7a.) On that date, Prevish filed a complaint adequately setting forth a survivorship cause of action against defendants, and correctly stating that Prevish had been named executor of the estate. Id. Under these facts, I would conclude that the complaint should relate back to the date of the timely-but-defective writ.

“Suits by or against an estate must be brought by or against the personal representative of the estate. Simply stated, the doctrine of relation back as applied to cases where an estate is a party means that the courts under certain circumstances will validate the acts of the personal representative of the estate which preceded the date of his official appointment.” Wilkes-Barre General Hosp. v. Lesho, 62 Pa.Cmwlth. 222, 225, 435 A.2d 1340, 1342 (1981). Our task is to determine whether, under all of the circumstances of the case, applying the relation back doctrine will achieve a just result. McGuire v. Erie Lackawanna Railway Co., 253 Pa.Super. 531, 535-36, 385 A.2d 466, 468 (1978); D’Orazio v. Locust Lake Village, Inc., 267 Pa.Super. 124, , 406 A.2d 550, 552 (1979); Estate of Gasbarini v. Medical Ctr. of Beaver, 487 Pa. 266, 409 A.2d 343, 346 (1979); Lesho, supra Our focus should be on this overriding issue, not any specific test. See Lesho, supra at 227, 435 A.2d at 1343 (test is not whether application for letters testamentary were filed before the statute of limitations expired). We should apply the doctrine where, under all of the circumstances, “the acts of the administrators will have been validated, a just result will have been achieved, the estate will have been benefited, [ ] a remedy will not have been lost [, and] the objectives of the statute of limitations [will not] have been disturbed.” Id.

Statutes of limitations are designed to expedite litigation and discourage stale claims, thereby promoting finality and stability. McGuire, supra. However, it is also horn-book law that a party may commence an action in this Commonwealth by filing a writ §§ 1007(1), 1361, 42 Pa.C.SA. The filing of this writ tolls the statute of limitations and is considered sufficient evidence that the party instituting the action is not bringing a stale claim. Anderson v. Bernhard Realty Sales Co., Inc., 230 Pa.Super. 21, 329 A.2d 852 (1974). So long as a timely writ was filed, it is plainly not “an unjust result” for a defendant to receive (after the statute of limitations would have otherwise run) a complaint spelling out the facts, legal theories, causes of action, and relief sought. I cannot agree, therefore, that it is an unjust result for a defendant to learn for the first time, in such a post-writ complaint, that appellant had been named executor of the estate.

Our supreme court recognized this principle in Gasbarini, supra. Unlike the majority, I read the facts of Gasbarini as describing a case quite similar in all relevant respects to the instant matter. In Gasbari-ni, decedent died on June 26, 1973. Within the statute of limitations period, on June 20, 1974, appellant’s counsel commenced an action in trespass by filing a writ of summons. Id. at 269, 409 A.2d at 344. The writ, as here, named only the decedent’s estate as plaintiff. Id. As here, defendants issued a rule to file a complaint. See Estate of Gasbarini v. Medical Center of Beaver, 253 Pa.Super. 547, 548-49, 385 A.2d 474, 475 (1978) (superior court opinion). Later, in October or November of 1974,² the complaint was filed. The complaint alleged wrongful death and survivorship causes of action and alleged that Gasbarini was the duly appointed administratrix of the estate. Gasbarini, supra at 273, 409 A.2d at 346 (supreme court opinion). Gas-barini’s letters testamentary had not actually issued at the time of the complaint, because appellant’s counsel failed to post a bond. Id. Defendants then filed preliminary objections, alleging that since letters testamentary had not yet actually been issued, the statute of limitations had effectively run. Id.; see also 385 A.2d at 475 (superior court opinion).³

The supreme court, citing McGuire, supra, disagreed and found that the complaint and the appointment of the executrix would relate back to the date of the timely-but-defective writ.⁴ Id. at 271-73, 409 A.2d at 346-47. In Gasbarini, the court ruled that the complaint gave defendants effective notice that “the action was based on our wrongful death and survival statutes,” and that “appellant was bringing this action in her capacity as administratrix of the decedent’s estate.” Id. at 272, 409 A.2d at 346. The court also forgave Gasbarini for not having been actually named executrix at the time the complaint was filed, as she had applied for the letters within the statutory period and the delays in receiving the letters had been the fault of her counsel. Id.

I find the Gasbarini analysis persuasive in the instant case. As in Gasbarini, Prevish’s post-writ complaint gave defendants notice that the action was brought (1) pursuant to the survivorship statutes, and (2) in Prevish’s capacity as executor of the estate. Moreover, unlike Gasbarini in the instant case Prevish actually was formally named executor of the estate at the time of the filing of the complaint. In this respect the instant case is even more worthy of an application of the relation-back doctrine than Gasbarini.

Thus, I cannot agree with the majority that “in all four cases [McGuire, D’Orazio, Lesho, and Gasbarini ], the defendants were notified, before the statute of limitations had run, of the fact that an action had been filed against them by a named individual who was, at least putatively, the personal representative of the decedent’s estate.” My reading of Gasbarini compels me to conclude that the defendants there (as here) first knew of the estate representative’s identity after the statute had run. Pursuant to Gasbarini I would apply the relation-back doctrine.

I disagree with the majority’s conclusion that the facts of this case “evidence ‘the sort of instability that statutes of limitation seek to preclude.’ ” Majority opinion at 204, citing McGuire, supra. I find that this asserted “uncertainty” is far more theoretical than real. Even though defendants did not know the executor’s identity when the writ was filed, they did know this fact (and all other relevant aspects of the cause of action) by the time the complaint was filed. Compare Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 601 (1973), cited in McGuire, supra at 538, 385 A.2d at 469 (no relation back in part because the identity of the administrator of the estate was uncertain at the time of the filing of the complaint).

Moreover, I see no evidence that defendants were prejudiced in any way here. From my reading of the correspondence between counsel after the writ was filed, there was no uncertainty about the fact that a case was going forward against defendants. In short, I see no reason in this case not to “validate the acts of the personal representative of the estate which preceded the date of his official appointment.” Lesho, supra at 225, 435 A.2d at 1342.

For these reasons, I respectfully dissent.

1 . I join fully in the reasoning of Judge Cirillo’s Dissenting Opinion as to the intended effect of Section 3376 of the Probate Code, 20 Pa.C.S.A. I would add that because it extends statutes of limitations, Section 3376 must necessarily apply to causes of action. However, I have serious concerns as to whether the Section 3376 issue has been properly preserved on appeal. Appellant Prevish first presented the Section 3376 issue on a petition for reconsideration before the trial court. Moreover, the trial court did not rule on the issue before Prevish appealed to this court. Therefore, I believe it is improvident for us to address it here.

2 . The superior court opinion, 385 A.2d at 475, states that the complaint was filed on October 15, 1974. The supreme court opinion, 409 A.2d at 344, states that the complaint was filed on November 15, 1974.

3 . I assume that the statute of limitations had run on June 20, 1974, five days after plaintiff filed the June 15, 1974, writ of summons.

4 . On this point, the supreme court opinion reads: "As we believe the appointment of appellant as administratrix should relate back to the June 20, 1974 date on which the complaint was filed, we believe that neither action was barred by the applicable statute of limitations.’’ Gasbarini, supra at 273, 409 A.2d at 346-47. From our reading of the facts of the supreme court opinion and the superior court’s opinion in the same case, it is clear that plaintiff had only filed a writ of summons on June 20, 1974. Moreover, it would be anomalous at best for defendants to have requested in October 1974 a writ to file a complaint if a complaint had already been filed in June. Thus, I conclude that plaintiff first filed her complaint in November 1974, after the statute of limitations had expired.