J-S15014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 KAYLEY RYAN                               :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 DAVID K. MCMULLIN,                        :    No. 1334 WDA 2018
 ADMINISTRATOR OF THE ESTATE OF            :
 ZACHARY HOHMAN, DECEASED                  :

             Appeal from the Order Entered September 4, 2018
     In the Court of Common Pleas of Allegheny County Civil Division at
                          No(s): GD-16-023331


BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                              FILED APRIL 15, 2019

      This matter is an appeal filed by plaintiff Kayley Ryan (Plaintiff) from an

order of the Court of Common Pleas of Allegheny County (trial court) granting

summary    judgment    in   favor   of   the   defendant,   David   K.   McMullin,

Administrator of the Estate of Zachary Hohman, deceased (Defendant), on the

ground that the action was barred by the statute of limitations.          For the

reasons set forth below, we affirm.

      This personal injury action arose out of a motor vehicle accident that

occurred in Turtle Creek Borough, Pennsylvania on July 13, 2014, when the

car in which Plaintiff was riding was rear-ended at a red light by a car driven

by Zachary Hohman (Decedent). Decedent passed away on April 8, 2015 from

a cause unrelated to the accident. On July 7, 2016, Plaintiff commenced an

action against Decedent in the trial court at Docket No. GD-16-012221. After

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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learning, on August 17, 2016, that Decedent was not alive, Plaintiff on

September 16, 2016 filed a petition with the Register of Wills to compel

administration of Decedent’s estate, and on October 18, 2016, Defendant was

appointed administrator of Decedent’s estate. Plaintiff petitioned to amend

her complaint in the GD-16-012221 action to substitute Defendant for

Decedent. That petition was denied on November 29, 2016 on the ground

that an action against a deceased defendant is a nullity. The July 7, 2016 GD-

16-012221 action is not before this Court in this appeal.

      Plaintiff commenced this action against Defendant on December 2,

2016, more than two years after the accident and more than one year after

Decedent’s death. Defendant filed preliminary objections seeking dismissal of

the complaint on the ground that it was barred by the statute of limitations.

Plaintiff argued in response that Defendant was estopped from asserting the

statute of limitations on grounds of fraudulent concealment because

Decedent’s insurer had not told her counsel that Decedent had died. Plaintiff

alleged in this response, which was verified by counsel, that her counsel and

Decedent’s insurer had exchanged letters after the accident and that the

insurer’s letters had continued to reference Decedent’s name in 2015 and

2016 after his death. Plaintiff’s Points in Opposition to Preliminary Objections

¶¶2-9, 12. Plaintiff also alleged that on June 27, 2016, the insurer gave or

confirmed an address for Decedent in response to her counsel’s telephone

request to verify the address where Decedent was living.         Id. ¶13.    On

February 8, 2017, the trial court overruled Defendant’s preliminary objections

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without opinion. Plaintiff, in her reply to Defendant’s new matter raising the

statute of limitations as a defense, denied that her claims were barred by the

statute of limitations, but did not plead any facts concerning her claim of

fraudulent concealment. Plaintiff’s Reply to New Matter ¶2.

       On June 29, 2018, following discovery, Defendant filed a motion for

summary judgment asserting that the action was barred by the statute of

limitations as a matter of law and the failure of the insurer to notify a plaintiff

of the death of its insured does not constitute fraudulent concealment.

Plaintiff in response did not submit any affidavit, deposition testimony,

discovery responses, or documents received from Decedent’s insurer to show

that her counsel had been misled by Decedent’s insurer or deterred from filing

suit earlier. Instead, Plaintiff submitted an unverified response to the motion

and supporting brief that reiterated the factual allegations in her response to

Defendant’s preliminary objections.1             Plaintiff attached to her response

documents authored by her own counsel, but did not attach any documents

sent to her counsel by Decedent’s insurer. On September 4, 2018, the trial

court granted Defendant’s motion for summary judgment and dismissed

Plaintiff’s complaint.
____________________________________________


1 Plaintiff also argued in her response that summary judgment on statute of
limitations grounds could not be granted because the trial court had denied
Defendant’s preliminary objections. This argument was utterly without merit.
The law is clear that the law of the case doctrine and the coordinate jurisdiction
rule do not bar a judge from granting summary judgment on a legal issue as
to which preliminary objections were previously overruled. K.H. ex rel. H.S.
v. Kumar, 122 A.3d 1080, 1091-92 (Pa. Super. 2015); Silvagni v. Shorr,
113 A.3d 810, 816 (Pa. Super. 2015).

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      Plaintiff timely appealed the trial court’s order to this Court. Plaintiff

presents only one issue for our review:

      Whether the trial court committed legal error in granting the
      defense motion for summary judgment, where it applied incorrect
      legal standards and/or overlooked contrary controlling law in
      analyzing the applicable rules and law governing both the grant
      or denial of a summary judgment motion, and settled decisional
      law regarding the proper tolling of the statute of limitations where
      estoppel is raised as a bar to the limitations defense.

Appellant’s Br. at 5 (unnecessary capitalization omitted).      Our standard of

review of the trial court’s grant of summary judgment is de novo and the scope

of review is plenary.   Pyeritz v. Commonwealth, 32 A.3d 687, 692 (Pa.

2011). We conclude that the trial court correctly applied the legal standards

governing summary judgment and the statute of limitations, including the law

governing estoppel for fraudulent concealment, and therefore affirm.

      There is no dispute that the statute of limitations expired before Plaintiff

filed this action. Actions “to recover damages for injuries to the person …

caused by the wrongful act or neglect or unlawful violence or negligence of

another” are subject to a two-year statute of limitations.         42 Pa.C.S. §

5524(2). The fact that the plaintiff was unaware that the defendant had died

does not toll the statute of limitations.    20 Pa.C.S. § 3383; McClean v.

Djerassi, 84 A.3d 1067, 1070 (Pa. Super. 2013); Lange v. Burd, 800 A.2d

336, 341-42 (Pa. Super. 2002).        Furthermore, the fact that the plaintiff

unsuccessfully brought an action against the decedent before the statute of

limitations expired does not toll the statute of limitations or permit an action



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against his estate after the limitation period has expired.   Lange, 800 A.2d

at 341.

      The Probate, Estates and Fiduciaries Code provides that if the defendant

dies less than one year before the statute of limitations would expire, an action

against the defendant’s estate is not barred if it is filed within one year after

the defendant’s death. 20 Pa.C.S. § 3383 (“The death of a person shall not

stop the running of the statute of limitations applicable to any claim against

him, but a claim which otherwise would be barred within one year after the

death of the decedent shall not be barred until the expiration of one year after

his death”); McClean, 84 A.3d at 1070; Lange, 800 A.2d at 341.              That

extension of the limitation period, however, is not applicable here because

Decedent died in April 2015, more than a year before the two-year statute of

limitations expired, and the one-year period from his death expired more than

seven months before this action was commenced.

      Rather, Plaintiff argues that summary judgment could not be granted

because Defendant was barred from asserting the statute of limitations by

fraudulent concealment. Where a defendant or his agent actively misleads

the plaintiff as to the identity of the proper defendant until after the statute

of limitations expires, the defendant is estopped from invoking the statute of

limitations with respect to the time period during which the plaintiff was

deceived. McClean, 84 A.3d at 1070; Lange, 800 A.2d at 339; Montanya

v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000); see also Molineux v.

Reed, 532 A.2d 792, 794 (Pa. 1987) (“Where, ‘through fraud or concealment,

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the defendant causes the plaintiff to relax his vigilance or deviate from his

right of inquiry,’ the defendant is estopped from invoking the bar of the statute

of limitations”) (quoting Schaffer v. Larzelere, 189 A.2d 267 (Pa. 1963)).

       The burden of proof on this issue is on the plaintiff, however, not the

defendant. The plaintiff must prove by clear and convincing evidence that the

defendant or his agent made an affirmative misrepresentation or committed

an affirmative act of concealment on which the plaintiff justifiably relied.

Molineux, 532 A.2d at 794; McClean, 84 A.3d at 1070; Lange, 800 A.2d at

339; Montanya, 757 A.2d at 951. Mere silence by the defendant or his agent

in the absence of a duty to speak does not bar the defendant from asserting

the statute of limitations. McClean, 84 A.3d at 1070; Lange, 800 A.2d at

339.    While intent to deceive need not be shown, mere mistake or

misunderstanding by the plaintiff is not sufficient. Molineux, 532 A.2d at

794; McClean, 84 A.3d at 1070; Lange, 800 A.2d at 339.

       Plaintiff claims that Defendant was estopped from asserting the statute

of limitations because Decedent’s insurer continued to reference its insured’s

name on correspondence with her counsel after April 8, 2015 and did not

advise her counsel in those letters that Decedent had passed away. Those

allegations are insufficient as a matter of law to constitute fraudulent

concealment. Lange, 800 A.2d at 340; Montanya, 757 A.2d at 951-52. An

insurer has no duty to notify opposing counsel of its insured’s death. Lange,

800 A.2d at 340; Montanya, 757 A.2d at 952. In Lange and Montanya,

this Court specifically held that using the insured’s name in correspondence

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after his death does not constitute an affirmative representation that the

insured is alive and does not bar the defendant from raising the statute of

limitations or excuse the plaintiff’s failure to timely sue the proper party.

Lange, 800 A.2d at 340; Montanya, 757 A.2d at 951.              Plaintiff’s claims

concerning Decedent’s insurer’s correspondence are indistinguishable from

Lange and Montanya.           Plaintiff did not allege in response to Defendant’s

summary judgment motion that any of the insurer’s letters did more than

reference Decedent’s name. Plaintiff made no allegation that the insurer’s

correspondence contained any affirmative statement that Decedent was alive,

let alone submit any affidavit, deposition testimony or document sent by the

insurer that showed any such affirmative representation.

       Plaintiff also contends that on June 27, 2016, her counsel asked the

insurer in a telephone call to verify the address where the defendant was living

and that the insurer in response gave him an address for Decedent or

confirmed the address that counsel had. Even if this unsworn assertion in an

unverified pleading could be considered in response to a summary judgment

motion,2 it was not sufficient to satisfy Plaintiff’s burden of proving fraudulent

concealment. Plaintiff does not contend that her counsel asked the insurer if

Decedent was alive and was told that he was alive. Rather, she contends that

counsel asked about an address for Decedent and that the insurer gave or

____________________________________________


2 See Pa.R.C.P. 1035.2(2), 1035.3(a)(2) (party opposing summary judgment
who bears the burden of proof on an issue must submit evidence to show that
it can meet its burden of proof).

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confirmed an address. Plaintiff submitted no evidence that the insurer knew

that Decedent had died or that the address was invalid at the time of the

conversation or at any time before the statute of limitations expired 16 days

later, on July 13, 2016.3 Absent evidence that the insurer knew in this time

frame that the Decedent was no longer alive or that the address was invalid,

simply providing an address in response to a request for an address does not

constitute an affirmative misrepresentation that Decedent was alive and does

not estop Defendant from asserting the statute of limitations. Compare Diaz

v. Schultz, 841 A.2d 546, 549-51 (Pa. Super. 2004) (defendant estopped

from asserting statute of limitations where insurer failed to respond to direct

question concerning the identity of the driver of the vehicle despite learning

that owner was not the driver two days later and answer to complaint

identifying driver was filed after statute of limitations ran even though answer

was due before limitation period expired).

       Moreover, even if this conversation had misled Plaintiff’s counsel, it

cannot excuse the delay in filing suit against the correct defendant that

occurred here. Plaintiff admits that the insurer, in response to inquiries after

the statute of limitations expired, told her counsel on August 17, 2016 that

Decedent had died on April 8, 2015. Therefore, even if the alleged June 27,

2016 conversation caused Plaintiff’s counsel to believe that Decedent was alive
____________________________________________


3 Plaintiff did not assert in her Pa.R.A.P. 1925(b) statement that she did not
have adequate time to take discovery to support her fraudulent concealment
claim in the period of over a year between the denial of Defendant’s
preliminary objections and the filing of the summary judgment motion.

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and that he did not have make any further investigation in that regard, he

was misled for only a period of 52 days. Plaintiff, however, did not file suit

against Defendant within 52 days after learning that she had sued a non-

existent party. This action was not commenced until December 2, 2016, three

and one-half months after her counsel was fully aware of Decedent’s demise.

      Because the undisputed facts established that this action was filed after

the applicable statutes of limitations had expired and Plaintiff’s allegations

concerning Decedent’s insurer’s conduct are insufficient as a matter of law to

satisfy her burden to show affirmative misrepresentation or an affirmative act

of concealment by clear and convincing evidence, we affirm the trial court’s

grant of summary judgment in Defendant’s favor.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2019




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