J-S73002-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN MARSH                                   :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                    Appellant                 :
                                              :
                                              :
             v.                               :
                                              :
                                              :
COLLEEN MARSH LIZZA                           :   No. 532 MDA 2017
                                              :
--------------------------------------------- :
ESTATE OF MARCELLA M. MARSH, BY               :
AND THROUGH THE ADMINISTRATOR,                :
BRIAN MARSH                                   :
                                              :
                    Appellant                 :
                                              :
                                              :
             v.                               :
                                              :
                                              :
COLLEEN MARSH LIZZA

               Appeal from the Order Entered March 1, 2017
   In the Court of Common Pleas of Lackawanna County Civil Division at
                          No(s): 2812 of 2016


BEFORE:    OLSON, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                          FILED FEBRUARY 13, 2018

     Appellant, Brian Marsh, appeals from the order entered on March 1,

2017, sustaining preliminary objections filed by Colleen Marsh Lizza (Lizza)

in response to a wrongful death and survivor action commenced by

Appellant. We affirm.

     We briefly summarize the facts and procedural history of this case as

follows. On May 3, 2016, Appellant instituted an action under the Wrongful

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S73002-17



Death Act and Survival Acts1 to recover damages against his sister, Lizza.

Specifically, Appellant filed a praecipe for the issuance of a writ of summons

in his capacity as the administrator of the estate of his mother, Marcella M.

Marsh (Marcella).      Thereafter, Appellant reissued the writ of summons, as

administrator on behalf of the estate, on June 2, 2016, June 30, 2016, and

July 21, 2016. There is no proof in the record that the original writ, or any

of these reissued writs, was served upon Lizza.

        On August 10, 2016, Appellant filed a praecipe to reissue and amend

the writ of summons. Pertinent to this appeal, the August 19, 2016 praecipe

and writ named Appellant in his individual capacity as the plaintiff and no

longer identified Appellant, as a claimant, in his capacity as administrator of

his mother’s estate. The August 10, 2016 praecipe and writ also provided a

different street address for Lizza. Lizza was served with that praecipe and

writ of summons on September 19, 2016.

        On September 22, 2016, Appellant filed a complaint under the

Wrongful Death Act and Survival Acts, in his individual capacity, alleging that

Lizza, a trained nurse and Marcella’s caregiver, acted wantonly, recklessly,

and negligently, ultimately leading to their mother’s death on July 28, 2013.

On October 12, 2016, Lizza filed preliminary objections to the complaint.

Lizza challenged, inter alia, the amended writ of summons and subsequent


____________________________________________


1   42 Pa.C.S.A. §§ 8301 and 8302, respectively.



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complaint because, although Appellant was the named plaintiff in all of the

various filings, Appellant unilaterally changed the capacity in which he was

asserting his claims without consent or leave of court. Lizza also challenged

Appellant’s capacity to sue as an administrator unless duly appointed and

argued Appellant’s wrongful death and survivor claims were “untimely and

therefore barred by the two year statute of limitations[.]”           Preliminary

Objections, 10/12/2016, at 3-4.2               In response to Lizza’s preliminary

objections, Appellant recognized that application of the statute of limitations

is a question of law for a trial court, but argued that dismissal of the

complaint was unwarranted as there remained issues of fact for a factfinder

under the discovery rule.            More specifically, Appellant asserted that,
____________________________________________


2 Pursuant to the Pennsylvania Rules of Civil Procedure, the defense that a
claim is barred by the statute of limitations is required to be set forth in a
responsive pleading entitled “New Matter.”            Pa.R.Civ.P. 1030(a) (“all
affirmative defenses including ... statute of limitations… shall be pleaded in a
responsive pleading under the heading “New Matter”.)              Thus, it was
procedurally improper for Lizza to raise the defense of statute of limitations
as a preliminary objection. However, our Court has held that “[w]here a
party erroneously asserts substantive defenses in preliminary objections
rather than to raise these defenses by answer or in new matter, the failure
of the opposing party to file preliminary objections to the defective
preliminary objections, raising the erroneous defenses, waives the
procedural defect and allows the trial court to rule on the preliminary
objections.” Preiser v. Rosenzweig, 614 A.2d 303, 305 (Pa. Super. 1992), aff'd, 646
A.2d 1166 (Pa. 1994). In this instance, Appellant failed to file preliminary
objections to Lizza’s preliminary objections; therefore, any claim that Lizza’s
preliminary objections were procedurally defective is waived and Lizza’s
preliminary objection raising the statute of limitations defense could be
decided by the trial court.




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“questions regarding [Marcella’s] cause of death did not begin to arise until

the latter part of 2014” even though her death resulted on “July 28, 2013[.]”

Memorandum of Law in Opposition to Preliminary Objections, 11/28/2016, at

7-8. The trial court held oral argument on December 12, 2016.

       On March 1, 2017, the trial court entered an order and opinion

sustaining Lizza’s preliminary objections and striking Appellant’s complaint.

This timely appeal followed.3

       Appellant raises the following issues for our review:

       1. Whether the trial court committed a manifest error of law or
          an abuse of discretion in sustaining [Lizza’s] preliminary
          objection under Pa.R.C.P. 1028(a)(1) and in striking the
          amended writ of summons and subsequent complaint by
          classifying the summons as a “pleading” in direct opposition
          to Pa.R.C.P. 1017 and improperly ascertaining it could not be
          amended without the consent of [Lizza] or leave of court
          under Pa.R.C.P. 1033 and thereby was facially defective and a
          nullity?

       2. Whether the trial court committed a manifest error of law or
          an abuse of discretion in sustaining [Lizza’s] preliminary
          objection under Pa.R.C.P. 1028(a)(1) and in striking the
          amended writ of summons and subsequent complaint by
          failing to consider that the amendment to the summons did
          not add a new party, but only amended the summons to
          change the name or the capacity [in which] Appellant
          commenced the action?


____________________________________________


3  Appellant filed a notice of appeal on March 21, 2017. On March 23, 2017,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court relies upon its earlier March 1, 2017 opinion as its
rationale for sustaining Lizza’s preliminary objections.



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      3. Whether the trial court committed a manifest error of law or
         an abuse of discretion in sustaining [Lizza’s] preliminary
         objection under Pa.R.C.P. 1028(a)(1) and in striking the
         amended writ of summons and subsequent complaint by
         failing to consider that the amendment to the summons only
         amended the summons as to what capacity [] Appellant
         commenced the action and that [Lizza] suffered no prejudice
         from the amendment?

      4. Whether the trial court committed a manifest error of law or
         an abuse of discretion in sustaining [Lizza’s] preliminary
         objection under Pa.R.C.P. 1028(a)(1) and in striking the
         amended writ of summons and subsequent complaint by
         disregarding, failing to consider, overlooking the facts of
         record, and wrongfully applying [] a two year statute of
         limitations to the amendment to the summons and
         subsequently filed complaint?

      5. Whether the trial court committed a manifest error of law or
         an abuse of discretion by failing to consider the issue of the
         legal sufficiency of the complaint?


Appellant’s Brief at 4-5 (superfluous capitalization, italics, and suggested

answers omitted).

      Because Appellant’s fourth issue is dispositive, we will address that

issue first. In sum, Appellant argues as follows:

      [] Appellant’s [c]omplaint alleges that the decedent died in 2013
      and was listed as having died of natural causes. [] Appellant
      brought the wrongful death suit in 2016 only after learning
      further facts about [Lizza’s] actionable behavior on the evening
      of the decedent’s death. The [t]rial [c]ourt relied on case law
      holding that the “discovery rule” does not apply to wrongful
      death actions. However, given that the [t]rial [c]ourt analyzed
      the amendment to the writ of summons and the preliminary
      objections under the wrong rule – Pa.R.C.P. 1033(a) – the facts
      alleged in the [c]omplaint address matters relevant to more than
      just the discovery rule.




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      Upon remand, therefore, the [t]rial [c]ourt should determine if []
      Appellant can plead and prove facts sufficient to show that
      [Lizza] has intentionally or fraudulently concealed the
      circumstances of the decedent’s death, so as to toll the statute
      of limitations or to estop her from asserting the defense.

Appellant’s Brief at 23.

      Initially, we note that, although Appellant raised the issue of the

discovery   rule    before   the   trial   court,   he    never    alleged   fraudulent

concealment, did not raise fraudulent concealment in his Pa.R.A.P. 1925(b)

statement, and, in fact, raises that legal theory for the first time on appeal.

We deem Appellant’s fraudulent concealment claim waived. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the [Pa.R.A.P. 1925(b)] Statement

[…] are waived.”); Pa.R.A.P. 302 (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Moreover, while

Appellant mentions the discovery rule in his brief, he does not cite legal

authority to support his claim that the rule is applicable in wrongful death

actions.    We could deem this issue waived.              See Commonwealth v.

Yocolano,        169     A.3d      47,      60      n.9     (Pa.     Super.      2017)

(“Appellate arguments which fail to adhere to [our] rules [of appellate

procedure] may be considered waived, and arguments which are not

appropriately developed are waived. Arguments not appropriately developed

include those where the party has failed to cite any authority in support of a

contention.”).     We choose not to find the issue waived.           However, for the

following reasons, Appellant’s argument lacks merit.




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      We review an order sustaining preliminary objections to determine

whether the trial court committed an error of law.     Feingold v. Hendrzak,

15 A.3d 937, 941 (Pa. Super. 2011). Moreover, this Court has previously

determined:

      Ordinarily most questions relating to the applicability of the
      defense of the statute of limitations are questions of fact to be
      determined by the jury. Specifically, the questions of whether a
      plaintiff has exercised due diligence in discovering the incidence
      of his injury is usually a jury question. Whether the statute has
      run on a claim is usually a question of law for the judge, but
      where [] the issue involves a factual determination, i.e. what is a
      reasonable [discovery] period, the determination is for the jury.

Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003).

      Our Supreme Court recently reaffirmed the following, longstanding

legal principles:

      [A] survival action is not an independent cause of action, but a
      continuation of a cause of action that accrued to the decedent,
      and the latest time when the statute of limitations runs is at the
      decedent's death.

      The statute of limitations will, of course, begin to run prior
      to death with respect to injuries that the afflicted individual
      should reasonably have “discovered” while alive, and, for this
      reason, [] the survival statute begins to run, “at the latest,”
      at death. The explanation for this lies in the nature of the
      survival cause of action, for [] “the survival statutes do not
      create a new cause of action; they simply permit a personal
      representative to enforce a cause of action which has already
      accrued to the deceased before his death.” The “accrual” concept
      was expressly recognized []; hence, the statute of limitations
      was regarded as running, at the latest, from the time of death,
      unless it had earlier “accrued” through the fact that the victim
      knew, or should reasonably have known, of his injury.

                          *           *            *


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     In the context of survival actions, which, as heretofore
     discussed, merely permit a personal representative to pursue a
     cause of action that had already accrued to a victim prior
     to death, the [rule expressed in] Pocono International
     Raceway v. Pocono Produce, Inc., 468 A.2d 468 (Pa. 1983)
     [] causes the statute of limitations to commence to run on the
     date when the victim ascertained, or in the exercise of due
     diligence should have ascertained, the fact of a cause of action.
     In no case, however, can that date be later than the date
     of death; hence, the statute runs, at the latest, from death.
     Because death is a definitely ascertainable event, and
     survivors are put on notice that, if an action is to be
     brought, the cause of action must be determined through
     the extensive means available at the time of death, there
     is no basis to extend application of the discovery rule to
     permit       the      filing      of      survival      actions,
     or wrongful death actions, at times beyond the specified
     statutory period.


Dubose v. Quinlan, 2017 WL 5616235, at *9–10 (Pa. 2017) (internal

citations and original brackets omitted; italics in original; emphasis added).

The statute of limitations for survival and wrongful death actions is two

years. See 42 Pa.C.S.A. § 5524(2).

     Here, the trial court determined:

     According to [Appellant’s] own binding admissions contained in
     his complaint, Marcella died on July 28, 2013. [Appellant] did
     not file his complaint until September 22, 2016, more than three
     years after the date of Marcella’s death. Although [Appellant]
     baldly argues that the statute of limitations in this matter is
     governed under the discovery rule, it is well-settled in this
     Commonwealth that the two-year statute of limitations
     applicable to wrongful death and survival actions under 42
     Pa.C.S.A. § 5524(2) may not be extended by the discovery rule,
     and that the latest date on which the statute of limitations
     begins to run for wrongful death and survival claims is the date
     of the decedent’s death.

                          *           *           *


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     Since the two-year statute of limitations had already expired at
     the time that [Appellant] amended the writ of summons and filed
     the complaint[,] they must be stricken.

Trial Court Opinion, 3/1/2017, at 13-15 (record and case citations, internal

quotations, and footnote omitted).

     We agree with the trial court and discern no error of law. The statute

of limitations for survival and wrongful death actions is two years.     42

Pa.C.S.A. § 5524.      The discovery rule is not applicable to survival and

wrongful death actions as recently reaffirmed by our Supreme Court in

Dubose.     Appellant averred that his mother died on July 28, 2013.

Therefore, his writ of summons, dated August 10, 2016, and subsequent

complaint, dated September 22, 2016, were filed after the two-year statute

of limitations had already expired.        There were no additional factual

determinations necessary. Thus, as a matter of law, the trial court properly

sustained Lizza’s preliminary objections and struck the complaint.      As a

result of this disposition, we need not address Appellant’s remaining

contentions.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2018


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