J-S65042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

AMBER VINCIGUERRA,                                   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

GEORGE TUNSTALL,

                            Appellee                     No. 403 WDA 2016


                    Appeal from the Order February 17, 2016
               in the Court of Common Pleas of Allegheny County
                       Civil Division at No.: GD-12-019371


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED: September 23, 2016

        Appellant, Amber Vinciguerra, appeals from the order of February 17,

2016, which dismissed her tort action against Appellee, George Tunstall. On

appeal, Appellant argues that the trial court erred in concluding that her

lawsuit was a legal nullity because Appellee died prior to its filing, and that

the statute of limitations barred her claims.          For the reasons discussed

below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s February 17, 2016 opinion and our independent review

of the certified record. On October 15, 2010, a vehicle driven by Appellee

struck Appellant’s automobile.          (See Trial Court Opinion, 2/17/16, at 1).
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S65042-16


Nationwide Mutual Insurance Company (Nationwide) insured Appellee’s car

under an automobile insurance policy.        (See id.).   In November 2010,

Appellant, through counsel, and Nationwide entered into communication

regarding the incident. (See Praecipe for Writ of Summons, 10/12/12; see

also Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at

unnumbered page 1). On February 6, 2012, Appellee died. (See Trial Ct.

Op., at 1).

      Appellant instituted the instant action, by way of a writ of summons on

October 12, 2012, three days prior to the expiration of the statute of

limitations. (See Appellee’s Brief in Support of Motion to Dismiss, 8/26/15,

at unnumbered page 2).         On October 16, 2012, the Allegheny County

Sheriff’s Office notified Appellant that it was unable to effect service because

Appellee was deceased.         (See Appellant’s Response in Opposition to

[Appellee’s] Motion to Dismiss, 7/02/15, at 3). Appellant has been unable to

effect service and has never filed a complaint.

      On January 18, 2013, Appellant filed a petition for citation to direct

that the heir(s) of George H. Tunstall open an estate, that a personal

representative be appointed and that letters of administration be issued by

the register of wills.   (See id. at 3-4).   Subsequently, the Orphans’ Court

issued a citation directing Appellee’s wife to show cause as to why she

should not be appointed administratrix of Appellee’s estate.       (See id. at

Exhibit B).   It appears that no further action has occurred with respect to


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that petition. (See Trial Ct. Op., at 2). On February 26, 2013, Appellant

notified Nationwide that Appellee had died. (See Appellee’s Brief in Support

of Motion to Dismiss, 8/26/15, at unnumbered page 2).

       On May 29, 2015, Appellee’s counsel, filed a “motion to dismiss.” The

trial court denied the motion on procedural grounds that same day. On June

2, 2015, Appellee filed a suggestion of death. On June 16, 2015, Appellee

filed a second “motion to dismiss,” arguing that the action was a legal nullity

because Appellee had died before Appellant filed it and that the statute of

limitations had expired. (See Motion to Dismiss, 6/16/15, at unnumbered

page 2). On June 16, 2015, the trial court issued an order stating, in part,

“the petition/motion shall be decided under Pa.R.C.P. 206.7[1]”. (Order of

____________________________________________


1
  Pennsylvania Rule of Civil Procedure 206.7, procedures after issuance of a
rule to show cause, provides:

              (a) If an answer is not filed, all averments of fact in the
       petition may be deemed admitted for the purposes of this
       subdivision and the court shall enter an appropriate order.

             (b) If an answer is filed raising no disputed issues of
       material fact, the court on request of the petitioner shall decide
       the petition on the petition and answer.

              (c) If an answer is filed raising disputed issues of material
       fact, the petitioner may take depositions on those issues, or such
       other discovery as the court allows, within the time set forth in
       the order of the court. If the petitioner does not do so, the
       petition shall be decided on petition and answer and all
       averments of fact responsive to the petition and properly
       pleaded in the answer shall be deemed admitted for the purpose
       of this subdivision.
(Footnote Continued Next Page)


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Court, 6/16/15, at unnumbered page 1).              On July 2, 2015, Appellant filed a

response arguing that Appellee was equitably estopped from raising a

statute of limitations defense; that by attempting to secure the appointment

of a personal representative Appellant acted in good faith; and, therefore,

the action should not be dismissed. (See Appellant’s Response in Opposition

to [Appellee’s] Motion to Dismiss, 7/02/15, at 5-11).

      On February 17, 2016, the trial court granted the “motion to dismiss.”

The instant, timely appeal followed.             On March 23, 2016, the trial court

ordered Appellant to file a concise statement of errors complained of on

appeal.    See Pa.R.A.P. 1925(b).            Appellant filed a timely Rule 1925(b)

statement on April 12, 2016. See id. On May 4, 2016, the trial court issued

an order adopting its February 17, 2016 opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      1. Did the trial court abuse its discretion and/or commit legal
         error by dismissing Appellant’s case by way of Pa.R.C.P.
         206.7?

      2. Did the trial court err by failing to correctly consider and/or
         apply the [d]octrine of [e]quitable [e]stoppel as it pertains to
         the tolling of the statute of limitations and decedent’s
         insurer’s duty to notify Appellant of decedent’s death?


                       _______________________
(Footnote Continued)


            (d) The respondent may take depositions, or such other
      discovery as the court allows.

Pa.R.C.P. 206.7.



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      3. Did the trial court err when it failed to consider Appellant’s
         equity argument that the [p]etition for [c]itation tolled the
         statute of limitations and/or that the relation back doctrine
         should apply?

(Appellant’s Brief, at 5).

      Appellant appeals from the trial court’s grant of Appellee’s “motion to

dismiss.” Initially, we note that, in its motion, Appellee did not identify the

rule of civil procedure that permits a “motion to dismiss.” (See Motion to

Dismiss, 6/16/15, at unnumbered pages 1-2). Further, in its decision, the

trial court did not specify a scope and standard of review.      (See Trial Ct.

Op., at 1-2). In a recent decision, when faced with the grant of a similarly

non-specific “motion to dismiss,” which, like the motion in the instant

matter, argued a statute of limitations defense, this Court treated the

“motion to dismiss” as preliminary objections and reviewed the decision

under that standard. See Rellick-Smith v. Rellick, — A.3d —, 2016 WL

4435625, at *3 (Pa. Super. filed Aug. 22, 2016). We will do likewise.

      Our scope and standard of review are well-settled.

      In determining whether the [trial c]ourt properly granted the
      [Appellee’s] preliminary objections (i.e., the [m]otion to
      [d]ismiss), we review the ruling for an error of law or abuse of
      discretion. On appeal from an order sustaining preliminary
      objections, we accept as true all well-pleaded material facts set
      forth in the appellant’s [documentation] and all reasonable
      inferences which may be drawn from those facts. Preliminary
      objections seeking dismissal of a cause of action should be
      sustained only in cases in which it is clear and free from doubt
      that the pleader will be unable to prove facts legally sufficient to
      establish the right to relief; if any doubt exists, it should be
      resolved in favor of overruling the objections.


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Id. (citations and quotation marks omitted).

      In her first issue, Appellant claims that because Pennsylvania law does

not recognize a “motion to dismiss” in the context of civil litigation, the trial

court erred in not treating it as either a motion for summary judgment or a

motion for judgment on the pleadings.           (Appellant’s Brief, at 16-17).

Appellant further asserts that it was improper to dismiss the action now

because she has not filed a complaint or been able to conduct proper

discovery. (See id. at 17). However, Appellant has waived this claim.

      Appellant did not raise this issue either in her response to Appellee’s

motion to dismiss or in her reply brief to the motion to dismiss.          (See

Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss,

7/02/15, at 5-11; [Appellant’s] Reply Brief in Opposition to [Appellee’s] Brief

in Support to Motion to Dismiss, 9/17/15, at 2-8).        We have consistently

held that issues raised for the first time on appeal are waived. See Yenchi

v. Ameriprise Fin., Inc., 123 A.3d 1071, 1081 (Pa. Super 2015), appeal

granted, 134 A.3d 51 (Pa. 2016); see also Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      Further, this claim is not included in Appellant’s Rule 1925(b)

statement.   (See Appellant’s Concise Statement of [Errors] Complained of

on Appeal Pursuant to Rule 1925(b), 4/12/16, at unnumbered pages 1-2).

As amended in 2007, Pennsylvania Rule of Appellate Procedure 1925


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provides that issues that are not included in the Rule 1925(b) statement or

raised in accordance with Rule 1925(b)(4) are waived.          See Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d 306, 308 (Pa.

1998), superseded by rule on other grounds as stated in Commonwealth v.

Burton, 973 A.2d 428, 431 (Pa. Super. 2009). Thus, for these reasons,

Appellant has waived her first issue.

       In her second issue, Appellant argues that the trial court erred by not

applying the doctrine of equitable estoppel, which would have tolled the

statute of limitations. (See Appellant’s Brief, at 18-27). We disagree.

       It is black-letter law that

       [a] dead man cannot be a party to an action, and any such
       attempted proceeding is completely void and of no effect.
       Moreover, because a dead person cannot be a party to an action
       commenced after his death, substitution of a personal
       representative of the dead person’s estate is improper. If a
       plaintiff commences an action against a person who has
       previously deceased, the only recourse is to file a new action
       naming the decedent’s personal representative as the defendant.

Montanya v. McGonegal, 757 A.2d 947, 950 (Pa. Super. 2000) (citations

omitted).

       Here, there is no dispute that Appellant filed the instant action on

October 12, 2012, over eight months after the death of Appellee. Further,

Appellant did not name Appellee’s personal representative2 as a defendant.

____________________________________________


2
 We note that the record is devoid of evidence that the Orphans’ Court ever
appointed a personal representative.



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Since Appellant cannot substitute Appellee’s personal representative, even if

such person existed, her only option would be to file a new action. See id.

However, the two-year statute of limitations has expired. See 42 Pa.C.S.A.

§ 5524. Moreover, Appellant did not file any action against the estate within

one year of Appellee’s death.3

        Despite this, Appellant argues that Nationwide either intentionally or

unintentionally concealed the information of Appellee’s death from her and

that, therefore, we should equitably toll the statute of limitations.        (See

Appellant’s Brief, at 20-21). We disagree.

        Fraudulent concealment of the identity of the proper defendant can toll

the running of the statute of limitations. See Krapf v. St. Luke’s Hospital,

4 A.3d 642, 649-50 (Pa. Super. 2010), appeal denied, 34 A.3d 831 (Pa.

2011) (citation omitted); see also Montanya, supra at 950-51.

              The doctrine is based on a theory of estoppel, and provides
        that the defendant may not invoke the statute of limitations, if
        through fraud or concealment, he causes the plaintiff to relax his
____________________________________________


3
    Pennsylvania law provides that:

        [t]he 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. Nothing in this section shall be construed
        to shorten the period which would have been allowed by any
        applicable statute of limitations if the decedent had continued to
        live.

20 Pa.C.S.A. § 3383.



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      vigilance or deviate from his right of inquiry into the facts. The
      doctrine does not require fraud in the strictest sense
      encompassing an intent to deceive, but rather, fraud in the
      broadest sense, which includes an unintentional deception. The
      plaintiff has the burden of proving fraudulent concealment by
      clear, precise, and convincing evidence.

Krapf, supra at 650 (citations omitted). Further,

      [t]he defendant must have committed some affirmative
      independent act of concealment upon which the plaintiffs
      justifiably relied.    Mere mistake or misunderstanding is
      insufficient. Also mere silence in the absence of a duty to speak
      cannot suffice to prove fraudulent concealment.

Lange v. Burd, 800 A.2d 336, 339 (Pa. Super. 2002), appeal denied, 818

A.2d 504 (Pa. 2003) (citations omitted).

      Here, Appellant has not pointed to a single “affirmative independent

act of concealment” by Nationwide.         While Appellant complains that

Nationwide negotiated with her for eight months without informing her of

Appellee’s death, (see Appellant’s Brief, at 22), she points to nothing in the

record which demonstrates that Nationwide had any knowledge of Appellee’s

death.   Further, while Appellant claims she “was justified in relying on

Nationwide’s misrepresentations[,]” she fails to specify their exact nature.

(Id. at 23).

      In Montanya, supra, the appellants claimed that the appellee’s widow

and his insurance company actively concealed the fact of his death until

after the running of the statute of limitations.    See Montanya, supra at

951. In support of this contention, the appellants contended that the widow

accepted service of the complaint without informing the sheriff that appellee

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was deceased and pre-suit correspondence with the insurance carrier

indicated that the appellee was alive, although they admitted the insurance

carrier never expressly said so.    See id.   We disagreed, finding that the

widow’s silence did not constitute an affirmative act, that there was no

evidence that the insurance carrier was aware of the appellee’s death, and

that it was the appellant’s obligation to ascertain whether the Appellee was

deceased. See id. We concluded:

      . . . this Court has held that some affirmative independent act of
      concealment upon which the [appellants] justifiably relied must
      have been committed.         Here, the insurance carrier’s mere
      silence or nondisclosure is insufficient. Simply put, it was the
      [appellants’] duty to ascertain the status of [the appellee] if they
      wanted to proceed properly, the insurance carrier was under no
      duty to inform the [appellants] of the status of their insured.

Id. at 952 (footnote omitted).

      Similarly, in Lange, supra, the appellants argued that the insurance

carrier fraudulently concealed that the appellee had died prior to the filing of

suit by sending them letters that referred to the appellee as “Our Insured”

and by stating that it had a contractual obligation to him. Lange, supra at

339. We disagreed, holding that the mere sending of two letters “does not

constitute the type of concealment to toll the statute of limitations.” Id. at

340. We again stated that an insurance company does not have a duty to

inform the appellants of the status of the insured. See id.

      The instant case presents an even stronger argument for not tolling

the statute of limitations than in Montanya and Lange, since here the


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Sheriff notified Appellant that Appellee had died. (See Appellant’s Response

in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3).      Appellant

has not pointed to any affirmative action undertaken by Nationwide to

conceal Appellee’s death, and, in fact, has not pointed to any evidence that

would demonstrate that Nationwide even was aware of it. (See Appellant’s

Brief, at 18-27). It was Appellant’s obligation to ascertain Appellee’s status

prior to filing suit.   See Lange, supra at 340; Montanya, supra at 952.

Appellant failed to do so.      Thus, we find that the trial court correctly

concluded that the doctrine of fraudulent concealment was inapplicable in

the instant matter. See Lange, supra at 340; Montanya, supra at 952.

Appellant’s second issue lacks merit.

      In her third issue, Appellant maintains that the trial court erred in

holding that the filing of a petition for citation in the Orphans’ Court did not

toll the statute of limitations. (See Appellant’s Brief, at 27-31). Appellant

contends that we should apply the doctrine of “relation back” to her case.

(Id. at 28). We disagree.

      In arguing that the relation back doctrine should apply, Appellant

relies on the Court of Common Pleas of York County’s 1969 decision in

Stephenson v. Wildasin Estate, 48 Pa. D. & C.2d 684 (York County C.P.

1969). (See Appellant’s Brief, at 29-31). Initially we note that, “court of

common pleas decisions provide, at most, persuasive but not binding

authority.” Sears, Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d


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959, 972 (Pa. Super. 2015).       Moreover, we find that Stephenson is

inapposite.

     In Stephenson, the plaintiff and the defendant were involved in an

automobile accident and, thereafter entered into negotiations.           See

Stephenson, supra at 684. The plaintiff was unaware that the defendant

died approximately eight months prior to the filing of the complaint; which

the plaintiff filed four days prior to the expiration of the statute of

limitations. See id. at 684-85. The sheriff was unable to effect service and

informed the plaintiff of the defendant’s death. See id. at 685. The next

day, the plaintiff instituted an action with the register of wills.   See id.

Approximately twenty days later the register of wills granted letters of

administration; the plaintiff served a summons on the administrator that

same day.     See id.   The defendant filed a motion for judgment on the

pleadings on statute of limitations grounds and the plaintiff argued that the

appointment of the administrator should be related back to the date on

which the plaintiff filed the applications for letters, which was within the

limitations period. See id. Relying on an Ohio case, Wrinkle v. Trabert,

188 N.E.2d 587 (Ohio 1963), the trial court held that, under the facts of the

case before it, the administrator’s appointment should relate back to the

date the plaintiff applied for its appointment. See Stephenson, supra at

686-88.   However, in so doing, the court noted the importance of diligent




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action on the part of the plaintiff both in applying for such an appointment

and in seeing the appointment consummated. See id. at 687.

       Initially, Appellant has pointed to little support for his contention that

Stephenson reflects the law of this Commonwealth.                 However, even

assuming, arguendo, that it does, it is factually distinct.       Here, unlike in

Stephenson, there is no evidence that Nationwide concealed the fact of

Appellee’s death from Appellant. Rather, it appears that Appellant became

aware of Appellee’s death months before Nationwide.            (See Appellant’s

Response in Opposition to [Appellee’s] Motion to Dismiss, 7/02/15, at 3;

Appellee’s Brief in Support of Motion to Dismiss, 8/26/15, at unnumbered

page   2).    Further, unlike    in   Stephenson,     Appellant   herein waited

approximately three months before filing an action with the register of wills.

(See Appellant’s Response in Opposition to [Appellee’s] Motion to Dismiss,

7/02/15, at 3-4).     Appellant has provided no explanation for this delay.

Moreover, the appointment of the personal representative is still pending,

and Appellant provides no reason for her lack of diligence in pursuing the

action. (See Trial Ct. Op., at 2).    As the trial court stated in Stephenson,

              [i]f such a party fails through lack of diligence to procure
       such appointment within time to properly urge his claim or, as in
       the present cause, he starts such procedure but fails to see that
       it is consummated, the law should not come to his aid. . . . In
       fact, plaintiff was aware of [the defendant’s death] but failed
       [without explanation], through his own lack of diligence [for
       three and one-half years], to perfect the appointment.




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Stephenson, supra at 687 (quoting Wrinkle, supra at 590-91) (emphasis

omitted).   Here, Appellant failed to act with due diligence in pursuing this

matter, therefore she is not entitled to the benefit of the relation back

doctrine. See id. at 687; see also Lovejoy v. Georgeff, 303 A.2d 501,

503-04 (Pa. Super. 1973) (declining to apply Stephenson and relation back

doctrine where plaintiff did not act with due diligence in pursuing action).

Appellant’s third issue lacks merit.

      Accordingly, for the reasons discussed above, we affirm the dismissal

of the action.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2016




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