J. A19044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

NICOLE BROWN,                                :     IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
                        Appellant            :
                                             :
                   v.                        :
                                             :          No. 1907 MDA 2017
QUEST DIAGNOSTICS CLINICAL                   :
LABORATORIES, INC.                           :


             Appeal from the Order Entered December 1, 2017,
               in the Court of Common Pleas of York County
                  Civil Division at No. 2013-SU-002078-82


BEFORE: GANTMAN, P.J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED APRIL 10, 2019

      Appellant,   Marcella   Brown,    in       her   capacity   as   the   personal

representative of the estate of Nicole Brown,1 appeals from the December 1,

2017 order entered by the York County Court of Common Pleas granting the

request to abate and dismiss the underlying medical malpractice cause of

action filed by Quest Diagnostics Clinical Laboratories, Inc. (“appellee”). After

careful review, we reverse and remand for further proceedings consistent with

this memorandum.


1 The underlying cause of action was filed by Nicole Brown, as reflected in the
caption. Nicole Brown passed away on April 2, 2015, and her mother,
Marcella Brown, was granted letters testamentary and was named executrix
of Nicole Brown’s estate. Additionally, Marcella Brown was named a personal
representative of Nicole Brown’s estate by the Surrogate’s Court of Gloucester
County, New Jersey. For ease of discussion, Nicole Brown will be referenced
as “decedent,” while Marcella Brown will be referenced as “Brown.”
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     The trial court provided the following factual and procedural history:

           [Decedent] commenced this medical malpractice
           action by filing a writ of summons on June 14, 2013.
           On December 13, 2013, [decedent] filed a complaint
           alleging a medical malpractice claim against
           [appellee.] On June 10, 2014, [decedent] filed an
           amended complaint.

           On April 2, 2015, [decedent] passed away.          On
           June 24, 2015, [appellee] filed a Suggestion of Death
           of the Plaintiff pursuant to Pennsylvania Rule of Civil
           Procedure 2355 and 20 Pa.C.S.A. § 3375. [Brown]
           alleges that on September 1, 2015, [she], was
           granted Letters Testamentary and named Executrix of
           the estate. On February 22, 2016, [] Brown filed a
           Motion to Substitute Plaintiff in accordance with
           Pennsylvania Rule of Civil Procedure 2352. The record
           reflects that nothing was done to bring the motion to
           the Court’s attention for consideration.

           On May 10, 2017, [the trial court] denied the motion
           without prejudice to properly present the motion with
           due notice to all parties at a session of motions court.
           On May 15, 2017, [appellee] filed a response in
           opposition to [Brown’s] motion to substitute and a
           supporting brief. On the same date, [appellee] also
           filed a petition to abate and dismiss based on
           [Brown’s] failure to timely substitute another party as
           the Plaintiff within one year of [decedent’s] death
           and/or the filing of the suggestion of death.

           On May 16, 2017, [Brown] filed a notice of
           presentment of matter at Civil Motions Court on the
           issue of amending the caption due to [decedent’s]
           death as requested in [Brown’s] motion to substitute
           [decedent]. On the same date, [the trial court] issued
           a rule to show cause upon [Brown] to show why
           [appellee] was not entitled to the relief of abating and
           dismissing the action and struck the matter from
           motions court. On May 22, 2017, [Brown] filed a
           response to [appellee’s] petition to abate and dismiss
           the action and a supporting brief.



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            On November 30, 2017, a hearing was held on
            [appellee’s] petition to abate and dismiss the action.
            After hearing argument, [the trial court] entered an
            order dismissing the action for the following reasons:
            (1) [Brown’s] failure to timely substitute another
            party after the death of [decedent]; and (2) [Brown’s]
            failure to provide a reasonable explanation for the
            delay.      This order was docketed with the
            prothonotary’s office on December 1, 2017.

            On December 8, 2017, [Brown] filed a motion for
            reconsideration and supporting brief of [the trial
            court’s] November 30, 2017 Order Dismissing Action
            and also filed a notice of appeal to the Superior Court.
            On December 11, 2017, [the trial court] issued an
            order directing [Brown] to file a statement of errors
            complained of pursuant to Pa.R.A.P. 1925(b). On
            December 21, 2017, [Brown] filed [her] 1925(b)
            Statement. On January 5, 2018, [appellee] filed a
            brief in opposition to [Brown’s] motion for
            reconsideration.

Trial court opinion, 2/9/18 at 2-4. The trial court filed an opinion pursuant to

Pa.R.A.P. 1925(a) on February 9, 2018.

      Brown raises the following issues for our review:

            [I.]   Did the York County Court of Common Pleas err
                   in dismissing this Action, as the case cited as
                   the basis for the reasoning in the Dismissal
                   Order (Grimm v. Grimm, 149 A.3d 77
                   (Pa.Super. 2016)) is distinguishable from the
                   present case?

            [II.] Did the York County Court of Common Pleas err
                  in dismissing this Action, as Grimm misstated
                  and/or misinterpreted 20 Pa.C.S.A. § 3375 to
                  stand for the proposition that a party
                  substitution (i.e. changing the case caption)
                  must occur within one year from the date of the
                  [decedent’s] death, when, in fact, 20 Pa.C.S.A.
                  § 3375 merely requires that taking out
                  testamentary letters appointing a personal


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                     representative must occur within one year after
                     a suggestion of such death is filed?

              [III.] Did the York County Court of Common Pleas err
                     in dismissing this Action, as the Dismissal
                     contradicts Pa.R.J.A. 103(c)(8)?

              [IV.] Did the York County Court of Common Pleas err
                    in dismissing this Action, as equitable estoppel
                    was triggered by [appellee’s] agreement to
                    concur with [Brown’s] timely filed Motion to
                    Substitute?

              [V.]   Did the York County Court of Common Pleas err
                     in dismissing this Action, as the Dismissal of
                     [decedent’s] action contradicts the general
                     preference under Pennsylvania law that cases
                     be decided on the merit [sic] whenever possible,
                     and especially where no prejudice has occurred?

              [VI.] Did the York County Court of Common Pleas err
                    in dismissing this Action, as the Dismissal is a
                    result of the departure of the York County Court
                    of Common Pleas’ local rules from general filing
                    and administrative practices?

Brown’s brief at 5-6.2

        In resolving all of Brown’s issues raised on appeal, we are governed by

the following standard of review: “To the extent that the question presented

involves interpretation of rules of civil procedure, our standard of review is

de novo. To the extent that this question involves an exercise of the trial

court’s discretion in granting a motion to dismiss, our standard of review is

abuse of discretion.”     Coulter v. Lindsay, 159 A.3d 947, 952 (Pa.Super.

2017), appeal denied, 172 A.3d 1108 (Pa. 2017), cert. denied, 138 S.Ct.


2   We have re-ordered Brown’s issues raised on appeal for ease of discussion.


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2576 (2018), quoting Coulter v. Ramsden, 94 A.3d 1080, 1086 (Pa.Super.

2014), appeal denied, 110 A.3d 998 (Pa. 2014).

      In her first issue on appeal, Brown contends that Grimm v. Grimm,

149 A.3d 77 (Pa.Super. 2016), the case relied upon by the trial court, is

distinguishable from the case before us. Appellee contends, and the trial court

found, that this case is controlled by our decision in Grimm.

      We agree with Brown that Grimm is not applicable to the facts of this

case. Indeed, the Grimm holding was limited to the issue of whether the

lower court had jurisdiction to enter a non pros in favor of a deceased party

defendant. Id. at 86. The Grimm court determined that because there was

never any action taken by either the plaintiff or the other defendants to file a

suggestion of death pursuant to Pa.R.Civ.P. 2355 and no personal

representative was substituted for the party defendant, the trial court lacked

subject matter jurisdiction to enter the non pros. Id. The Grimm court then

vacated the non pros and remanded to the trial court to either dismiss the

cause of action for lack of jurisdiction or to permit substitution of a personal

representative in accordance with the Pennsylvania Rules of Civil Procedure.

Id.

      The language from Grimm relied upon by the trial court is dictum and

is neither central nor dispositive to the holding in the case.

            We begin our analysis with the applicable rule of civil
            procedure. Pennsylvania Rule of Civil Procedure 2355
            provides that, “If a named party dies after the
            commencement of an action, the attorney of record


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            for the deceased party shall file a notice of death with
            the prothonotary. The procedure to substitute the
            personal representative of the deceased party shall be
            in accordance with Rule 2352. Pa.R.C[iv].P. 2355(a)
            (emphasis added). Thus, under Rules 2352 and 2355,
            the filing or a notice of death and the substitution of a
            personal representative is mandatory. When the
            deceased party is a plaintiff and such
            substitution fails to occur within one year of the
            plaintiff’s death, the trial court is required to
            abate the action unless the delay in appointing
            a personal representative is “reasonably
            explained.” 20 Pa.C.S.A. § 3375.

            Although referring only to plaintiffs, section 3375 is in
            essence a codification of the common law of this
            Commonwealth which has long recognized that a trial
            court lacks subject matter jurisdiction over a claim
            filed against a deceased party. See Valentin v.
            Cartegina, 544 A.2d 1028, 1029 (Pa.Super. 1988)
            (per curiam) (citation omitted) (Suit filed against a
            deceased individual a “nullity.”); Thompson v. Peck,
            [] 181 A. 597, 598 ([Pa.] 1935) (Suit filed against a
            deceased individual “void.”); see also Sandback v.
            Quigley, 8 Watts 460, 463 (1839) (“[T]he death of
            the plaintiff put an end to the action, for under no form
            of writ can the action of dower afterwards be
            sustained.”). As this Court stated, “A dead man
            cannot be a party to an action, and any such
            attempted proceeding is completely void and of no
            effect.” Lange v. Burd, 800 A.2d 336, 341 (Pa.Super
            2002) (citations omitted).

Id. at 84-85 (footnote omitted; emphasis added).

      We also recognize that this court’s paraphrasing of the language of

Section 3375 above is not an accurate reading of the statute. Section 3375,

in fact, reads as follows:

            If a plaintiff or petitioner in any action or proceeding
            now pending or hereafter brought dies and a personal
            representative is not appointed within one year after


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            a suggestion of death is filed in the action or
            proceeding, any defendant or respondent may petition
            the court to abate the action as to the cause of action
            of the decedent. Copies of the petition shall be served
            upon the executor named in the will, if known to the
            defendant, and otherwise upon all known next of kin
            entitled to letters of administration. The court shall
            abate the action as to the cause of action of the
            decedent if the delay in taking out letters is not
            reasonably explained.

20 Pa.C.S.A. § 3375.

      It is clear that the statute requires that an estate be raised, letters of

administration be issued, and a personal representative be appointed within

one year of the suggestion of death being filed.     The actual timing of the

substitution of the personal representative in the underlying action is not

governed by Section 3375.

      Instantly, the suggestion of death was filed on June 24, 2015, albeit by

appellee, two months after decedent’s death. On September 1, 2015, Brown

was issued testamentary letters in New Jersey appointing her the personal

representative of the estate. The letters were therefore issued and an estate

was raised well within the timeframe allotted by Section 3375. In fact, the

substitution of party was filed and time stamped February 22, 2016, also well

within one year of decedent’s death, even though the motion to substitute is

not governed by the time limitation of Section 3375. The trial court examined

Brown’s delay of over a year in presenting the substitution motion to the court

in the context of Section 3375’s “reasonably explained” component. However,




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the reasonable explanation in Section 3375 relates to the delay in taking out

letters.

      Accordingly, we find that the trial court abused its discretion when it

granted appellee’s request to abate and dismiss Brown’s underlying medical

malpractice cause of action.      We therefore reverse the trial court’s

December 1, 2017 order and remand for further proceedings consistent with

this memorandum. We need not discuss Brown’s five remaining issues, as

the issues are now moot.

      Order reversed. Remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/10/2019




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