J.A30042/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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