J-S61037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE ESTATE OF AGNES KLEMM                :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
           v.                            :
                                         :
PLATEA CEMETERY ASSOCIATION,             :
                                         :
APPEAL OF: ANTHONY DeFRANCO              :             No. 296 WDA 2016

                  Appeal from the Order February 10, 2016
                in the Court of Common Pleas of Erie County,
                      Civil Division, No(s): 13875-2012

BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED AUGUST 31, 2016

     Anthony DeFranco (“DeFranco”), on behalf of the Estate of Agnes

Klemm (“the Estate”), appeals, pro se, from the Order granting the

Preliminary Objections filed by Platea Cemetery Association (“Platea”) and

dismissing his Complaint with prejudice. We affirm.

     DeFranco    claims that between 1978      and 1980, Agnes Klemm

(“Klemm”), his grandmother, purchased nine cemetery plots from Platea.

See Complaint, 10/23/15, at 2.    Klemm’s husband was buried in the first

plot in 1978. Id. Klemm died in 1984, and was buried in the second plot.

Id. Joann DeFranco (“Joann”), Klemm’s daughter and DeFranco’s mother,

was named executrix of the Estate. Id. at 1. In May 2012, Joann met with

Platea regarding the remaining cemetery plots.        Id. at 2.    At this time,

Platea notified Joann that only two of the plots remained.         Id.   Joann’s

husband was buried in a third plot in July 2012.          Id.     In April 2013,
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DeFranco submitted an affidavit from August 2012, wherein Joann passed

the legal rights to the remaining plots to DeFranco.               Id. at 2-3; Sworn

Statement, 8/26/12.      Subsequent to the initiation of these proceedings,

Joann, who died in August 2015, was buried in the fourth plot, leaving

DeFranco to claim five unaccounted-for cemetery plots.                See Complaint,

10/23/15, at 2-3.

     In May 2014, DeFranco filed a Writ of Summons. DeFranco purported

to file the Writ under the Estate, naming Joann DeFranco as “Executrix” and

himself as “Executor.”    Platea filed Preliminary Objections to the Writ of

Summons.     The trial court granted the Preliminary Objections.             However,

this Court determined that preliminary objections to a writ of summons are

not permitted by the Pennsylvania Rules of Civil Procedure, and remanded

for further proceedings. Estate of Klemm v. Platea Cemetery Assoc. &

Michael    Curran,    131     A.3d    84     (Pa.     Super.      2015)   (unpublished

memorandum).

     Thereafter, on October 23, 2015, DeFranco filed a Complaint, asserting

claims of breach of contract and theft.            DeFranco filed the Complaint on

behalf of the Estate, listing Joann as “Executrix” and naming himself “Co-

Executor   (Beneficiary).”1    Platea      filed    Preliminary    Objections   to   the

Complaint. The trial court granted the Preliminary Objections and dismissed



1
  While Joann died prior to the filing of the Complaint, she purportedly
signed the Complaint.


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the Complaint with prejudice, due to DeFranco’s lack of standing. DeFranco

timely filed a Notice of Appeal.

      On appeal, DeFranco raises two issues for our review:

      I.    Whether the trial court erred as a matter of law for
            dismissing the Complaint for lack of standing when the
            executrix filed the Complaint with [DeFranco]?

      II.   Whether the trial court erred in not enforcing discovery,
            [and] when it dismissed [the] Complaint, not accepting
            factual averments as true in the Complaint[]?

Brief for Appellant at iii (issues renumbered).

            Our standard of review in determining whether a trial court
      erred in sustaining preliminary objections is well settled. We
      must consider as true all well-pleaded material facts set forth in
      the complaint and all reasonable inferences that may be drawn
      from those facts. However, we are not required to accept a
      party’s allegations as true to the extent they constitute
      conclusions of law. In conducting our analysis, we observe that
      preliminary objections, the end result of which would be
      dismissal of the action, may be properly sustained by the trial
      court only if the case is free and clear of doubt. This Court
      should affirm a trial court’s order sustaining preliminary
      objections … where, accepting all well-pleaded material facts set
      forth in the complaint and all inferences fairly deducible from
      those facts as true, the plaintiff is not entitled to relief.

Cable & Assocs. Ins. Agency v. Commercial Nat’l Bank, 875 A.2d 361,

363 (Pa. Super. 2005) (citations omitted).        This Court “is to determine

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

15 A.3d 937, 941 (Pa. Super. 2011).

      In his first issue, DeFranco avers that the trial court erred in

dismissing the Complaint for lack of standing. See Brief for Appellant at 4-

5. DeFranco asserts that because Joann, acting as executrix of the Estate,


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was also a party to the Complaint, standing is not an issue.         Id. at 4.

DeFranco also claims that he is named as a beneficiary. Id.2

     “Prior to judicial resolution of a dispute, an individual must as a

threshold matter     show   that he   has standing to    bring the    action.”

Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659

(Pa. 2005).

     Standing is a requirement that parties have sufficient interest in
     a matter to ensure that there is a legitimate controversy before
     the court. In determining whether a party has standing, a court
     is concerned only with the question of who is entitled to make a
     legal challenge and not the merits of that challenge. As a
     general matter, the core concept of the doctrine of standing is
     that a person who is not adversely affected in any way by the
     matter he seeks to challenge is not “aggrieved” and has no right
     to obtain a judicial resolution of his challenge.

In re T.J., 739 A.2d 478, 481 (Pa. 1999) (citation omitted).

            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.

McClean v. Djerassi, 84 A.3d 1067, 1071 (Pa. Super. 2013) (emphasis

omitted).     “[A]ll actions that survive a decedent must be brought by or




2
  DeFranco fails to cite to any relevant case law to support his claim. See
Pa.R.A.P. 2119(a) (stating that “the argument shall be … followed by such
discussion and citation of authorities as are deemed pertinent.”).



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against the personal representative[3] of the decedent’s estate.” Prevish v.

Northwest Med. Ctr. – Oil City Campus, 692 A.2d 192, 200 (Pa. Super.

1997) (en banc) (footnote added); see also 20 Pa.C.S.A. § 3373 (stating

that “[a]n 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.”).

      Here, DeFranco brought this action purportedly on behalf of the Estate.

While Joann, as executrix of the Estate, could have properly brought the

action, see Prevish, 692 A.2d at 200, she is deceased and cannot sustain

the action. See McClean, 84 A.3d at 1071. Moreover, DeFranco is not the

executor of the Estate and was not a named beneficiary of the Estate. See

In re Estate of Luongo, 823 A.2d 942, 956 (Pa. Super. 2003) (concluding

that “a mere showing of a relationship to the decedent and/or beneficiary

status under the probated will is insufficient to confer standing[.]”).4

DeFranco also does not indicate that he was Joann’s executor.             Thus,

because the action was brought on behalf of the Estate, DeFranco did not

have standing to bring the action. See In re Kilpatrick’s Estate, 84 A.2d

339, 340-41 (Pa. 1951) (stating that the administrator of the estate has the

right to sue on the estate’s behalf and that next of kin have no such

3
  A 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.
4
 The affidavit, signed by Joann transferring the funeral plots to DeFranco,
does not provide standing to the Estate through DeFranco.


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interest); see also Oudry-Davis v. Findley, 64 Pa. Super. 92, 94-95 (Pa.

Super. 1916) (noting that heirs do not have standing to recover estate

assets in a decedent’s name).5

     Based on the foregoing, the trial court did not err in dismissing

DeFranco’s Complaint. Based upon our determination, we decline to address

DeFranco’s remaining claims.     We therefore affirm the Order of the trial

court sustaining Platea’s Preliminary Objections and dismissing DeFranco’s

Complaint with prejudice.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2016




5
  DeFranco could not seek leave to amend the Complaint, as he could not
cure the defect. See McClean, 84 A.3d at 1071. His only recourse is to file
a new complaint. See id.


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