Winchell v. Lubinski, No. 206-3-11 Rdcv (Teachout, J., Nov. 2, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 206-3-11 Rdcv

ROBERT WINCHELL,
    Plaintiff

v.

THOMAS LUBINSKI,
    Defendant
                                                  DECISION
                                     Plaintiff’s Motion for Reconsideration

       Thomas Lubinski, the defendant in this suit, died in February 2011. Plaintiff
Robert Winchell filed his Complaint on March 29, 2011. Defendant’s attorney
subsequently filed a Motion to Dismiss on the grounds that Mr. Lubinski was deceased at
the time of the commencement of the suit. On September 2, 2011, the court granted the
Motion to Dismiss. Plaintiff filed the present Motion for Reconsideration on September
13, 2011.

         Plaintiff bases his argument in favor of reconsideration on 12 V.S.A. § 557(a),
which tolls the running of the statute of limitations upon the death of a party. As the
estate of Thomas Lubinski was opened on August 5, 2011, the statute allows Plaintiff to
initiate a new suit against the estate at any time before August 5, 2013. Plaintiff argues
that, because a new suit would be allowed under this statue, the court should allow him to
amend his original complaint and name the estate as a defendant.

        Plaintiff’s argument ignores the jurisdictional basis for the dismissal of his action.
As the authorities collected in the previous opinion evidence, the death of a defendant
prior to the commencement of a suit leaves the court without subject matter jurisdiction
to hear the case. See, e.g., Glover v. State Farm Mut. Auto. Ins. Co., 950 A.2d 335, 339
(Pa. Super. Ct. 2008). Though this rule may strike Plaintiff as a technicality, the court is
powerless to allow amendment or grant any other form of relief when it lacks subject
matter jurisdiction. In the eloquent phrase of the Glover court, “there is, technically,
nothing to amend.” Id.

           Accordingly, Plaintiff’s Motion for Reconsideration is denied.

            Dated at Rutland, Vermont this 2nd day of November, 2011.


                                                                                           ________________________
                                                                                             Hon. Mary Miles Teachout
                                                                                                       Superior Judge
