J-A13009-16
                             2016 PA Super 217
ROBERT E. GRIMM, II,                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

ALTHA EUGENE GRIMM, A/K/A EUGENE
GRIMM, AND EVA M. GRIMM, HIS WIFE,
A/K/A EVA M. THOMPSON AND VINCENT
J. ROSKOVENSKY, II, INDIVIDUALLY
AND D/B/A/ VINCENT J. ROSKOVENSKY,
II, ATTORNEY AT LAW,

                        Appellees                   No. 915 WDA 2015


              Appeal from the Judgment Entered May 11, 2015
              In the Court of Common Pleas of Fayette County
                 Civil Division at No(s): 1432 of 2007, G.D.

BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.:                         FILED SEPTEMBER 28, 2016

     Appellant, Robert E. Grimm II (“Grandson”), appeals from the

judgment entered on May 11, 2015.      In this case, we consider whether a

trial court possesses subject matter jurisdiction over claims pending against

a defendant when the defendant in an action dies during the litigation and

no personal representative is substituted in his or her place. After careful

consideration, we hold that the death of a party deprives the trial court of

subject matter jurisdiction over litigation by or against the deceased until

such time as the deceased’s personal representative is substituted in his or

her place. We therefore vacate the trial court’s judgment of non pros as to

Altha Eugene Grimm (“Grandfather”). We conclude, however, that the trial
J-A13009-16


court properly sustained preliminary objections filed by the other defendants

and therefore affirm those determinations.

      The factual background of this case is as follows.1       During 2005,

Grandfather’s family noticed a decrease in his mental capacity.             On

September 26, 2005, they contacted Adult Protective Services (“APS”).

After APS evaluated Grandfather, he was involuntarily committed to a

mental   health   facility   on   September   30,   2005.   While   committed,

Grandfather’s then-girlfriend, Eva M. Grimm (“Grandmother”) held herself

out as Grandfather’s wife.2       Based upon Grandmother’s representations to

the mental health facility, Grandfather was released into her care.

Grandmother encouraged Grandfather to act violently towards other family

members and refused to help Grandfather with his mental health treatment.

      During subsequent competency proceedings, Vincent J. Roskovensky,

II (“Attorney Roskovensky”) represented Grandfather.        On June 7, 2006,

Grandfather went to Grandson’s home and began yelling at Grandson.

When Grandson told Grandfather to leave the premises, Grandfather struck

Grandson in the face with a shovel handle.             According to Grandson,


1
   As the only claims we address on the merits were disposed of on
preliminary objections, we accept as true all well-pled factual allegations set
forth in Grandson’s amended complaint. See Estate of Gentry v. Diamond
Rock Hill Realty, LLC, 111 A.3d 194, 198 (Pa. Super. 2015) (citation
omitted).
2
 Although Grandfather and Grandmother eventually married, they were not
married at the time Grandfather was committed to the mental health facility.



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Grandfather stated that Attorney Roskovensky told him that he could do

anything he wanted because he was 70 years old.

        The relevant procedural history of this case is as follows.   Grandson

commenced the instant action on May 31, 2007 by filing a praecipe for writs

of   summons     directed   to   Grandmother,   Attorney   Roskovensky,   and

Grandfather. The docket entries reveal that, other than completing service

of process on the defendants and the filing of a certificate of merit as to

Attorney Roskovensky, no other actions were taken in this case until July 28,

2009 when the trial court issued notice of its intent to terminate the case

pursuant to Pennsylvania Rule of Civil Procedure 230.2 (relating to the

termination of inactive cases).      In response, on September 21, 2009,

Grandson filed a notice of intent to proceed. On February 7, 2011, Grandson

filed his complaint.     On March 24, 2011, Grandson filed an amended

complaint. In mid-April 2011, Grandmother and Attorney Roskovensky filed

preliminary objections in the nature of demurrers. On October 6, 2011, the

trial court sustained Grandmother and Attorney Roskovensky’s preliminary

objections and dismissed Grandson’s claims against those two defendants.

Grandson requested that the trial court certify the October 6 order as a final

order pursuant to Pennsylvania Rule of Appellate Procedure 341(c);

however, the trial court denied that request.

        We take judicial notice that on or about May 16, 2013, Grandfather

died.    See Goff v. Armbrecht Motor Truck Sales, Inc., 426 A.2d 628,



                                      -3-
J-A13009-16


630 n.4 (Pa. Super. 1980) (this Court may take judicial notice); cf.

Pa.R.Evid. 201(b)(2), (c)(1) (a court may sua sponte take judicial notice of a

fact which “can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned”). No notice of death was filed

and no personal representative was thereafter substituted as a defendant in

Grandson’s lawsuit against Grandfather.      On December 4, 2013, the trial

court issued notice of its intent to terminate the remaining case against

Grandfather pursuant to Pennsylvania Rule of Civil Procedure 230.2.         In

response, Grandson filed a notice of intent to proceed on February 6, 2014.

Thereafter, the trial court scheduled a status conference. At the conclusion

of that status conference on February 19, 2015, the trial court ordered that

the case be placed on the first available arbitration list after July 1, 2015.

On March 23, 2015, Grandfather’s counsel filed a motion seeking a judgment

of non pros.    On May 11, 2015, the trial court granted the motion and

entered a judgment of non pros as to the claims asserted against

Grandfather. This appeal followed.3

      Grandson presents seven issues for our review:

    1. Whether failure [by Grandfather’s counsel] to file with the [trial
       c]ourt a [n]otice of [d]eath of a [p]arty or a [s]ubstitution of
       [p]ersonal [r]epresentative as required by [Pennsylvania Rule of

3
  On June 11, 2015, the trial court ordered Grandson to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On July 1, 2015, Grandson filed his concise statement.
On July 27, 2015, the trial court issued its Rule 1925(a) opinion. All issues
raised on appeal were included in Grandson’s concise statement.



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J-A13009-16


        Civil Procedure] 2355 prohibits the entry of a [judgment of n]on
        [p]ros for delay in the prosecution of this matter?

     2. Whether [Grandfather’s death] . . . constitute[d] actual prejudice
        [that justified the trial court granting a judgment of non pros as
        to Grandson’s claims against Grandfather because of the] delay
        in the prosecution of this matter?

     3. Whether an immediate family member of a mentally ill relative
        who commits a violent assault upon the family member has a
        cause of action for professional negligence against the attorney
        who represented the mentally ill relative in his competency
        hearings, had actual knowledge of his mentally ill client’s
        propensity for violence, intentionally interfered with the mentally
        ill client’s mental health treatment, made misrepresentations to
        the [court] relative to [the] mentally ill client’s mental health
        evaluations, and actively encouraged the mentally ill client to act
        out against his family members?

     4. Does the Restatement of Torts (Second), Section [876], apply to
        the facts of this case where an attorney representing a mentally
        ill client with a history of violent acts provide[d] encouragement
        to his mentally ill client to engage in violent acts, and otherwise
        [interfered] with his client’s mental health treatment?

     5. Did [Grandson] state sufficient facts to plead a cause of action
        for concerted tort action [against Attorney Roskovensky]?

     6. Did [Grandson] state sufficient facts to plead a cause of action
        for concerted tort action [against Grandmother]?

     7. Whether the outrageous acts of [Grandfather, Grandmother, and
        Attorney Roskovensky] as stated in [Grandson’s] complaint state
        a cause of action for exemplary and punitive damages?

Grandson’s Brief at 6-7 (internal quotation marks omitted).4

        In his first and second issues, Grandson contends that the trial court

erred by granting a motion for non pros as to claims asserted against


4
    We have re-numbered the issues for ease of disposition.



                                       -5-
J-A13009-16


Grandfather.   Prior to addressing these issues, however, we sua sponte

consider whether the trial court possessed subject matter jurisdiction over

the motion for non pros. See Turner Const. v. Plumbers Local 690, 130

A.3d 47, 63 (Pa. Super. 2015) (“[W]e can raise the issue of jurisdiction sua

sponte[.]”). “It is hornbook law that as a pure question of law, the standard

of review in determining whether a trial court has subject matter jurisdiction

is de novo and the scope of review is plenary.” S.K.C. v. J.L.C., 94 A.3d

402, 406 (Pa. Super. 2014) (internal alteration, quotation marks, and

citation omitted).

      In order to understand this issue, it is necessary to examine the

difference   between    standing,    personal   jurisdiction,   subject   matter

jurisdiction, and a court’s power.

      “[T]he doctrine of standing . . .     is a prudential, judicially created

principle designed to winnow out litigants who have no direct interest in a

judicial matter. For standing to exist, the underlying controversy must be

real and concrete, such that the party initiating the legal action has, in fact,

been aggrieved.”     Commonwealth, Office of Governor v. Donahue, 98

A.3d 1223, 1229 (Pa. 2014) (internal quotation marks and citation omitted).

In Pennsylvania, “[w]hether a party has standing to maintain an action is

not a jurisdictional question.” In re Adoption of Z.S.H.G., 34 A.3d 1283,

1289 (Pa. Super. 2011) (per curiam) (internal quotation marks and citation




                                      -6-
J-A13009-16


omitted).5   Thus, an issue relating to standing is waivable.     See In re

Estate of Brown, 30 A.3d 1200, 1204 (Pa. Super. 2011) (citation omitted).

      Personal jurisdiction is “[a] court’s power to bring a person into its

adjudicative process[.]” Black’s Law Dictionary (10th ed. 2014). Moreover,

“personal jurisdiction is readily waivable.”   In re Estate of Albright, 545

A.2d 896, 902 (Pa. Super. 1988), appeal denied, 559 A.2d 33 (Pa. 1989);

see also Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 103 (Pa.

Super. 2007), appeal denied, 956 A.2d 435 (Pa. 2008) (issue relating to

personal jurisdiction waived for failure to comply with applicable rules of

court).

      Subject matter jurisdiction “relates to the competency of the individual

court, administrative body, or other tribunal to determine controversies of

the general class to which a particular case belongs.” Green Acres Rehab.

& Nursing Ctr. v. Sullivan, 113 A.3d 1261, 1268 (Pa. Super. 2015)

(citation omitted).   “[S]ubject matter jurisdiction [is] not susceptible to

waiver.” Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007) (citation

omitted).

      “[Judicial authority or p]ower, on the other hand, means the ability of

a decision-making body to order or effect a certain result.” Michael G. Lutz


5
 In other jurisdictions, standing is a jurisdictional question. E.g., Nebraska
ex rel. Reed v. Nebraska, Game & Parks Comm'n, 773 N.W.2d 349, 352
(Neb. 2009) (citations omitted); Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 110 (1998).



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J-A13009-16


Lodge No. 5, of Fraternal Order of Police v. City of Philadelphia, 129

A.3d 1221, 1225 n.4 (Pa. 2015) (citation omitted). A litigant can waive a

challenge to a trial court or administrative body’s power to issue an order or

decree.   See Riedel v. Human Relations Comm'n of City of Reading,

739 A.2d 121, 124–125 (Pa. 1999).

      The distinction between standing, personal jurisdiction, subject matter

jurisdiction, and judicial power is sometimes subtle; however, it is

important. See Lutz Lodge No. 5, 129 A.3d at 1225 n.4. In this case, the

distinction is critical because Grandson did not file a petition to open or

strike the judgment of non pros. Instead, he filed the instant appeal within

30 days of the entry of the judgment of non pros. Failure to file a petition to

open or strike a judgment of non pros operates as an appellate waiver as to

all issues relating to the judgment of non pros. See Horwath v. DiGrazio,

2016 WL 3513912, *1 (Pa. Super. June 24, 2016) (citation omitted).6

Therefore, if the failure to substitute Grandfather’s personal representative

resulted in the loss of standing to file the motion, the trial court losing

6
   All of our cases that discuss waiver for failure to file a petition to open or
strike a judgment of non pros specify that failure to file such a petition
results in waiver of those claims relating to the judgment of non pros. Other
claims, not related to the judgment of non pros, are not waived by failure to
file a petition to open or strike a judgment of non pros, even when that
judgment disposes of the final claims pending in the litigation. This makes
sense as a party may not want to challenge the judgment of non pros but
may instead want to challenge a prior order disposing of other parties.
Thus, we reject Grandmother and Attorney Roskovensky’s argument that
Grandson waived his third through seventh issues on appeal for failing to file
a petition to open or strike the judgment of non pros.



                                      -8-
J-A13009-16


personal jurisdiction over Grandfather, or the trial court losing power to

enter the judgment of non pros, then Grandson’s failure to file a petition to

open or strike the judgment of non pros results in Grandson waiving all

issues relating to the judgment of non pros.              If, however, the failure to

substitute Grandfather’s personal representative resulted in the trial court

losing     subject   matter   jurisdiction   over   the    claims   pending   against

Grandfather, then we may sua sponte raise the issue as subject matter

jurisdiction cannot be waived. See Turner Const., 130 A.3d at 63.

         After careful consideration, we hold that the death of a party deprives

the trial court of subject matter jurisdiction over litigation by or against the

deceased until such time as the deceased’s personal representative is

substituted in his or her place. We make this determination primarily based

upon the language of the applicable rules of civil procedure and the case law

in this Commonwealth addressing the effect of a lawsuit filed by or against a

party who dies during the pendency of litigation.

         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 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.P. 2355(a) (emphasis




                                         -9-
J-A13009-16


added).7 Thus, under Rules 2352 and 2355, the filing of 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. Cartegena, 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 (Pa. 1839) (“[T]he death of the




7
    Rule 2352 provides that

        (a) The successor may become a party to a pending action by
        filing of record a statement of the material facts on which the
        right to substitution is based.

        (b) If the successor does not voluntarily become a party, the
        prothonotary, upon praecipe of an adverse party setting forth
        the material facts shall enter a rule upon the successor to show
        cause why the successor should not be substituted as a party.

Pa.R.C.P. 2352.




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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).

        The language that the courts of this Commonwealth have used leads

us to conclude that the death of a party divests a court of subject matter

jurisdiction over claims brought by or          against the   deceased party.

Specifically, this Court and our Supreme Court have repeatedly used the

terms “null” and “void” when discussing the effect of a filing after a party

dies.   E.g., Lange, 800 A.2d at 341;         Thompson 181 A. at 598, citing

Brooks v. Boston & N. St. R. Co., 97 N.E. 760 (Mass. 1912). An action is

only null and void for purposes of appellate review if a court lacks subject

matter jurisdiction.   If a party lacks standing, or the court lacks personal

jurisdiction or power, the issue can be waived and thus ipso facto is not null

and void if not properly preserved.8     Thus, although these past decisions

have not explicitly used the term “subject matter jurisdiction” when


8
  We recognize that an action can be null and void because of some other
defect, i.e., lack of personal jurisdiction or judicial power of the court, if a
party properly preserves the issue before the trial court. See Flynn v. Casa
Di Bertacchi Corp., 674 A.2d 1099, 1105 (Pa. Super. 1996) (citation
omitted). What we address, however, is the use of the terms “null” and
“void” for purposes of appellate review where an issue was not properly
presented to the trial court. In those circumstances, an action is only null
and void if the trial court lacked subject matter jurisdiction.



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discussing why an action by or against a deceased party is null and void, it is

evident by the use of the terms “null” and “void” that the issue goes to

subject matter jurisdiction and not to standing, personal jurisdiction, or a

court’s power.

       We acknowledge that in 1974, this Court reached the opposite

conclusion in a non-precedential decision. See Gilberti v. Payne, 313 A.2d

264 (Pa. Super. 1974) (per curiam) (non-precedential summary affirmance),

appeal dismissed, 331 A.2d 158 (Pa. 1975). In Gilberti, the defendant died

after the complaint was filed but prior to the commencement of trial.

Counsel   filed   a   suggestion   of   death    but   the   defendant’s   personal

representative was never substituted in place of the deceased defendant.

Eventually, a judgment was entered in favor of the plaintiff and against the

deceased defendant.      Counsel for the defendant appealed and this Court

summarily affirmed without issuing an opinion. See Gilberti, 313 A.2d at

264.

       Our Supreme Court granted allowance of appeal but subsequently

dismissed the appeal as improvidently granted. See Gilberti, 331 A.2d at

159. Justice Pomeroy dissented from the dismissal because, in his view, this

Court’s decision was incorrect and permitting the error to go uncorrected

risked perpetuation of the error.          Justice Pomeroy’s dissent from the

dismissal of the appeal is not clear regarding whether he believed that the

defendant’s death divested the trial court of the power to enter judgment in



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J-A13009-16


favor of the plaintiff or whether he believed that the defendant’s death

divested the trial court of subject matter jurisdiction over the claim against

the deceased. Compare Gilberti, 331 A.2d at 159 (Pomeroy, J. dissenting)

(suggesting that the death divested the trial court of subject matter

jurisdiction) with id. at 160 (suggesting that the death divested the trial

court of power to enter the judgment).

      We conclude that a careful reading of Justice Pomeroy’s dissent

evidences his belief that the trial court lacked subject matter jurisdiction and

that his statement regarding the trial court’s power was an instance of

confusing subject matter jurisdiction and power. Specifically, throughout the

dissent, Justice Pomeroy discussed why the judgment was null and void. Id.

at 159 (“I believe that such a judgment is absolutely null and void[.]”); see

also id. at 160 n.1 (discussing the fact that the judgment was void).         As

discussed in greater detail above, an action is only “null and void” for

purposes of appellate review if the trial court lacks subject matter

jurisdiction.   Thus, although Justice Pomeroy’s dissent used imprecise

language, we conclude that he believed that the trial court lacked subject

matter jurisdiction to enter a judgment against the decedent in Gilberti.

      In opining that the trial court lacked subject matter jurisdiction, Justice

Pomeroy used the       same    type   of analysis that we      conduct above.

Specifically, he relied upon the Pennsylvania Rules of Civil Procedure’s

mandatory requirement that a personal representative be substituted for a



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J-A13009-16


deceased party. See Gilberti, 331 A.2d at 159-160. He also relied upon

prior appellate decisions regarding the status of litigation after a party dies.

See id. at 160. Thus, we believe that our analysis today comports with that

of Justice Pomeroy in Gilberti which we find persuasive.

      For all of these reasons, we conclude that the trial court lacked subject

matter jurisdiction over Grandson’s claims against Grandfather at the time

that it entered the judgment of non pros in favor of Grandfather.9 As we are

obliged to raise subject matter jurisdiction sua sponte, and a party cannot

waive an issue relating to the trial court’s lack of subject matter jurisdiction,

Grandson’s failure to file a petition to open or strike the judgment of non

pros did not waive the issue for appellate review. As the trial court lacked

subject matter jurisdiction over Grandson’s claims against Grandfather at

the time it entered the judgment of non pros, we vacate the judgment of

non pros and remand this matter to the trial court to either dismiss the


9
   We note that courts in other jurisdictions that have considered similar
issues have likewise determined that the death of a party divests a court of
subject matter jurisdiction over claims brought by or against that party.
See Vapnersh v. Tabak, 131 A.D.3d 472, 473 (N.Y. App. Div. 2015)
(internal quotation marks and citations omitted) (“The death of a party
divests the court of jurisdiction and stays the proceedings until a proper
substitution has been made pursuant to [New York’s equivalent of Rules
2352 and 2355.] Moreover, any determination rendered without such
substitution will generally be deemed a nullity.”); Long v. Riggs, 617 P.2d
1270, 1272 (Kan. App. 1980), overruled on other grounds, Graham v.
Herring, 305 P.3d 585 (Kan. 2013); Coffin v. Edgington, 23 P. 80, 80
(Idaho 1890) (citations omitted); Judson v. Love, 35 Cal. 463, 467
(1868).




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

representative   in   accordance     with   the   Pennsylvania   Rules   of   Civil

Procedure.10

      In his third through sixth issues, Grandson argues that the trial court

erred in sustaining preliminary objections filed by Attorney Roskovensky and

Grandmother.     Prior to addressing the merits of these claims, we first

address the trial court’s determination that Grandson’s notice of appeal was

untimely as to these claims.       “The question of timeliness of an appeal is

jurisdictional. In order to preserve the right to appeal a final order of the

trial court, a notice of appeal must be filed within [30] days after the date of

entry of that order.” Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa.

Super. 2000) (internal citations omitted).        Although the order sustaining

preliminary objections was filed on October 6, 2011, that order was not a

final, appealable order because claims against Grandfather remained

pending. See Spuglio v. Cugini, 818 A.2d 1286, 1287 (Pa. Super. 2003)

(per curiam) (citation omitted) (“orders [sustaining] preliminary objections

and disposing of only some but not all of the underlying parties or claims are

interlocutory and unappealable”).      Thus, it was not until the entry of the


10
    We note that although we are unable to reach the merits of Grandson’s
first and second issues, we have serious reservations about the propriety of
the trial court’s action. The motion for non pros was filed a mere 32 days
after the status conference at which the case was set for arbitration. The
record does not reflect a material change during that short timespan which
warranted the entry of a judgment of non pros.



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judgment of non pros on May 11, 2015 that the orders sustaining

preliminary objections became subject to appellate review.           As such,

Grandson’s notice of appeal was timely filed.

      Having determined that we have jurisdiction over the remaining

claims, we proceed to the merits.11     When reviewing an order sustaining

preliminary objections, our standard of review is de novo and our scope of

review is plenary. Huss v. Weaver, 134 A.3d 449, 453 (Pa. Super. 2016)

(en banc) (citation omitted).     “On an appeal from an order sustaining

preliminary objections, we accept as true all well-pleaded material facts set

forth in the [plaintiff’s] complaint and all reasonable inferences which may

be drawn from those facts.”      Estate of Gentry v. Diamond Rock Hill

Realty, LLC, 111 A.3d 194, 198 (Pa. Super. 2015) (internal alteration and

citation omitted).   “Preliminary objections which seek the dismissal of a

cause of action should be sustained only in cases in which it is clear and free

11
    Grandmother argues that Grandson’s attorney failed to comply with
numerous rules of appellate procedure in drafting Grandson’s brief.
Grandmother urges us to either quash this appeal or dismiss the appeal
pursuant to Pennsylvania Rule of Appellate Procedure 2101. Grandmother
also notes that this Court previously warned this particular attorney against
violating the Pennsylvania Rules of Appellate Procedure. See In re Estate
of Grimm, 943 A.2d 328 (Pa. Super. 2007) (unpublished memorandum), at
12-13 n.5.

We agree that Grandson’s counsel has once again flaunted numerous rules
of appellate procedure. E.g., Pa.R.A.P. 124(a)(4), 2116(a), 2135(a)(1),
2154(a). Nonetheless, we decline to quash the appeal, or find waiver.
Instead, we condemn counsel’s actions and warn that future failures to
comply with applicable court rules may result in sanctions against him
and/or his client(s).



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from doubt that the pleader will be unable to prove facts legally sufficient to

establish the right to relief.” Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa.

Super. 2011) (citation omitted).

      In his third issue, Grandson argues that the trial court erred in

sustaining   Attorney    Roskovensky’s     preliminary    objection    to   his   legal

malpractice claim. At oral argument, Grandson’s counsel conceded that this

claim is foreclosed by our Supreme Court’s decision in Guy v. Liederbach,

459 A.2d 744 (Pa. 1983). In Guy, our Supreme Court held that in order to

pursue   a   legal   malpractice   claim   there   must    be   an    attorney-client

relationship, i.e., privity, between the attorney and the plaintiff.        The only

exception to the privity requirement is for “a named beneficiary of a will who

is also named executrix” where the attorney who drafted the will and

directed the plaintiff to witness, which, in turn, caused her entire legacy to

be voided and her appointment as executrix to be terminated. Id. at 746.

      “It is beyond peradventure that [this] Court must follow [our

Supreme] Court’s mandates, and [this Court] generally lacks the authority to

determine that [our Supreme] Court’s decisions are no longer controlling.”

Walnut St. Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468,

480 (Pa. 2011) (citation omitted). As Grandson’s counsel conceded at oral

argument, Guy is still controlling and therefore we may not grant Grandson

relief on this third claim of error.




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      In his fourth and fifth issues, Grandson argues that the trial court

erred by sustaining Attorney Roskovensky’s preliminary objections to his

concerted tortious action claim. Our Supreme Court adopted section 876 of

the Restatement (Second) of Torts as the law of this Commonwealth.12 See

Skipworth by Williams v. Lead Indus. Ass’n, Inc., 690 A.2d 169, 174–

175 (Pa. 1997).     “For harm resulting to a third person from the tortious

conduct of another, one is subject to liability if he . . . knows that the other’s

conduct constitutes a breach of duty and gives substantial assistance or

encouragement to the other so to conduct himself[.]”              HRANEC Sheet

Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114, 120 (Pa. Super.

2014), quoting Restatement (Second) of Torts § 876(b).

      We   conclude    that   the   trial   court   properly   sustained   Attorney

Roskovensky’s preliminary objection in the nature of a demurrer.            As the

comment to section 876 makes clear, concerted tortious action requires the

secondary actor13 to have knowledge of the primary actor’s tortious actions

or the primary actor’s tortious act must be foreseeable to the secondary

12
   Attorney Roskovensky argues that section 876 is inapplicable to most
attorney-client interactions. As we conclude that even if section 876 applies
to the advice Attorney Roskovensky provided Grandfather, we decline to
address this argument. Instead, we assume arguendo that section 876 is
applicable in this situation.
13
   Commentators have used the term “secondary actor” to refer to the
person from whom a plaintiff is seeking to recover under section 876 and the
term “primary actor” to refer to the person who commits the underlying tort.
E.g., Christine L. Eid, Comment: Lawyer Liability for Aiding and Abetting
Squeeze-Outs, 34 Wm. Mitchell L. Rev. 1177 (2008).



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actor. See Restatement (Second) of Torts § 876 cmt b (“although a person

who encourages another to commit a tortious act may be responsible for

other acts by the other, ordinarily he is not liable for other acts that,

although done in connection with the intended tortious act, were not

foreseeable by him”).      In this case, that means Grandson was required to

plead that Attorney Roskovensky either knew that Grandfather was going to

strike Grandson or that Grandfather’s striking of Grandson was a reasonable

foreseeable    consequence         of        Attorney    Roskovensky’s       statements     to

Grandfather.

     Grandson argues that the facts as pled in his amended complaint, i.e.,

that Attorney Roskovensky knew that Grandfather was a violent person,

counseled Grandfather that he was judgment proof and was immune from

prosecution because of his age, and interfered with Grandfather’s mental

health treatment, state a cause of action under section 876. We disagree.

Grandson’s     complaint   fails        to    plead     any   facts   that   show    Attorney

Roskovensky     knew    Grandfather            would     strike   Grandson    in    the   face.

Furthermore, Grandson’s complaint falls woefully short of pleading that

Attorney Roskovensky should have known that his counseling of Grandfather

would lead to the battery of Grandson.

     We find persuasive the Court of Appeals of Maryland’s decision in

Duke v. Feldman, 226 A.2d 345 (Md. 1967). In Duke, the primary actor

assaulted the plaintiff who attempted to recover against the primary actor’s



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wife for concerted tortious action.14    The court found evidence that: the

secondary actor was aware of her husband’s previous threats to the victim;

the secondary actor requested that the primary actor recover money from

the victim; and the secondary actor drove the primary actor from the scene

of the assault.

      In Duke, the court concluded that the primary actor’s assault of the

victim was not a foreseeable consequence of the secondary actor asking him

to recover funds from the victim.       The court relied on the fact that the

primary actor did not evidence any design or intent to carry out his threats

when he visited the victim to collect the money. Id. at 347-348. The court

reasoned that the secondary actor may have believed that the primary actor

was willing to recover the money in a peaceful manner, despite his history of

violence towards the victim. Id. at 348. Moreover, the secondary actor did

not see the primary actor with any weapon which could be used to assault

the victim. Id. Therefore, the court held that it would be mere speculation

to conclude that the primary actor’s assault was foreseeable.

      Grandfather’s actions were much less foreseeable than the primary

actor’s conduct in Duke. Grandson avers that Attorney Roskovensky knew

of Grandfather’s propensity for violence.       In Duke, not only did the


14
   Although the term concerted tortious action is not used in Duke, it is
evident that the court was considering such a claim. See Halberstam v.
Welch, 705 F.2d 472, 483 (D.C. Cir. 1983) (discussing Duke in the context
of a section 876 analysis).



                                    - 20 -
J-A13009-16


secondary actor know of the primary actor’s propensity for violence, she

knew of his propensity for violence towards the specific victim in the case.

In this case, Grandson failed to plead that Attorney Roskovensky knew about

Grandfather’s propensity of violence towards Grandson – instead Grandson

alleged only a general propensity of violence towards family members.15 In

Duke, the secondary actor encouraged the primary actor to recover money

from the victim – an action that often leads to violence.              In this case,

Grandson failed to plead that Attorney Roskovensky encouraged Grandfather

to confront Grandson.       Finally, in Duke the secondary actor drove the

primary actor from the scene. In this case, Attorney Roskovensky was not

present at the scene of the alleged battery.          Therefore, we conclude that

Grandson failed to plead sufficient acts to maintain a section 876 claim

against Attorney Roskovensky. Accordingly, we conclude that the trial court

properly sustained Attorney Roskovensky’s preliminary objection in the

nature of a demurrer as to this count.

      In his sixth issue, Grandson argues that the trial court improperly

sustained Grandmother’s preliminary objection in the nature of a demurrer

as   to   his   concerted   tortious   action    claim.     Grandson    argues   that

Grandmother’s knowledge of Grandfather’s propensity for violence and

interference    with   Grandfather’s    mental     health   treatment    constituted


15
  To the extend Grandson argues that he pled such facts, that argument is
waived. See Pa.R.A.P. 2101, 2117(c), 2119(e).



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concerted tortious action.16 We conclude that this argument is without merit

for reasons similar to why we reject these arguments as to Attorney

Roskovensky.

     Grandson failed to plead that Grandmother knew that Grandfather

intended to strike Grandson in the face.      Furthermore, like with Attorney

Roskovensky, Grandson’s factual allegations fall woefully short of pleading

that Grandmother should have known that her actions would lead to

Grandfather’s battery of Grandson.

     We find Duke persuasive for the same reasons that we found it

persuasive as to Attorney Roskovensky. Duke is more similar to Grandson’s

claim against Grandmother because, like in Duke, Grandson is attempting to

impose liability on the spouse of the primary actor. Like in Duke, however,

Grandmother cannot be held liable for unforeseeable actions taken by

Grandfather towards Grandson. Accordingly, we conclude that the trial court

properly sustained Grandmother’s preliminary objection in the nature of a

demurrer to Grandson’s concerted tortious action claim.

     In his final issue, Grandson alleges that the trial court erred by

dismissing his claim for punitive damages.        However, “[a] request for

punitive damages does not constitute a cause of action in and of itself.

16
   Grandson also makes arguments related to direct tortious action by
Grandmother, e.g., a direct breach of fiduciary duty. Concerted tortious
action, however, is a claim directed to a secondary actor and not the primary
actor. Thus, we disregard any arguments Grandson makes as to why
Grandmother breached her fiduciary duty towards Grandson.



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Rather, a request for punitive damages is merely incidental to a cause of

action.”   McClellan v. Health Maint. Org. of Pennsylvania, 604 A.2d

1053, 1061 (Pa. Super. 1992), appeal denied, 616 A.2d 985 (Pa. 1992)

(citation mitted). As the trial court correctly sustained Grandmother’s and

Attorney Roskovensky’s preliminary objections and dismissed all claims

against those two defendants, there are no viable underlying claims and

Grandson is not entitled to punitive damages as to those two defendants.

Whether Grandson is entitled to punitive damages as to Grandfather is not

ripe, so we decline to address that question. See In re Estate of Piet, 949

A.2d 886, 896 (Pa. Super. 2008), vacated on other grounds, 997 A.2d 338

(Pa. 2010) (per curiam) (declining to reach issue not ripe for appellate

review).

      In sum, we hold that the trial court lacked subject matter jurisdiction

to enter a judgment of non pros in favor of Grandfather.17      We therefore

vacate the trial court’s judgment of non pros and remand for further

proceedings on Grandson’s claims against Grandfather.      We conclude that


17
   We acknowledge that this holding appears to create a perverse incentive
for defense counsel to not file a notice of death and to not timely substitute
a personal representative in place of a deceased defendant. We note,
however, that the Pennsylvania Rules of Civil Procedure provide adequate
safeguards against such abuse. If defense counsel is aware of his or her
client’s death and fails to file a timely notice of death, he or she has
breached his or her obligation under Rule 2355 and the trial court may
impose appropriate sanctions. If defense counsel fails to timely substitute a
personal representative, the plaintiff(s) may use the procedure set forth in
Rule 2352(b) to obtain the necessary substitution.



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the trial court properly sustained Attorney Roskovensky and Grandmother’s

preliminary objections.      As Grandson’s arguments relating to punitive

damages against Grandfather are not ripe for disposition, we decline to

reach that question.

      Judgment affirmed in part and vacated in part.      Case remanded.

Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2016




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