J-A30042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF ANNA C. KASYCH, DECEASED                IN THE SUPERIOR COURT OF
C/O MILDRED CALKINS,                                    PENNSYLVANIA
ADMINISTRATRIX



                       v.

EDWARD H. BUTZ, ESQUIRE, LEVSAVOY
BUTZ & SEITZ, LLC, ST. LUKE’S HEALTH
NETWORK, INC., AND ST. LUKE’S
HOSPITAL ALLENTOWN CAMPUS

APPEAL OF: MILDRED CALKINS                             No. 646 EDA 2015


               Appeal from the Order Entered February 13, 2015
                In the Court of Common Pleas of Lehigh County
                      Civil Division at No(s): 2014-C-0961


BEFORE: MUNDY, J., JENKINS, J., and FITZGERALD, J.*

DISSENTING STATEMENT BY MUNDY, J.:                FILED FEBRUARY 26, 2016

        I respectfully dissent from the Majority’s decision to affirm the trial

court’s order, concluding that the trial court correctly decided that

Appellant’s complaint was void and without effect.       In my view, the trial

court lacked the authority to sua sponte address this issue.

        As the Majority highlights, the issue presented is that the estate, as

the named plaintiff, lacks the capacity to sue.       See generally Majority

Memorandum at 5-7. Our Supreme Court has stated “[t]he quintessential

example of someone who lacks capacity to sue or be sued is a deceased
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
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person, as capacity only exists in living persons.” In re Estate of Sauers,

32 A.3d 1241 (Pa. 2011).     Furthermore, this Court recently unequivocally

stated that issues pertaining to capacity to sue are waivable in Pennsylvania.

            A defendant timely objects to a plaintiff’s lack of
            capacity to sue if the defendant raises this issue in
            preliminary objections or in its answer to the
            complaint.

                   It bears emphasis that lack of capacity to sue
            is treated differently than other issues listed in Rule
            1028. Multiple issues listed in Rule 1028 are waived
            if the defendant fails to raise them in preliminary
            objections, e.g., improper service of process or lack
            of personal jurisdiction. Other issues, such as lack of
            subject matter jurisdiction or failure to join an
            indispensable party, are never waived.         Lack of
            capacity to sue falls between these two extremes: it
            is waived not merely through omission from
            preliminary objections, but through omission from
            both preliminary objections and the answer to the
            complaint.

Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 257-258 (Pa.

Super. 2015) (internal citations and footnotes omitted, emphasis in original).

      In this case, Butz raised the issue of the estate’s lack of capacity to

sue in his preliminary objections.   Attorney Butz’s Preliminary Objections,

7/14/14, at ¶¶ 3-5. The preliminary objections filed by St. Luke’s did not

raise this issue.    At the August 18, 2014 hearing on the preliminary

objections, defense counsel for Attorney Butz stated the following on the

record to the trial court.

            [Appellant’s counsel]: Your Honor, we agree that
            Mildred Calkins is the proper party.     [Appellant]
            would respectfully state that since she is the only

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              party named as Plaintiff in paragraph 14 of the
              complaint and she also appears in the caption that’s
              been appropriately stated, but if, without any effect
              on relation back, meaning if the caption to the
              complaint could be reformed, we have no objection
              to that.

              [Trial Court]:       So I should enter an order to that
              effect?

              [Butz’s counsel]: Yes. We’ve withdrawn our first
              preliminary objection based on the agreement I’ve
              reached with counsel that the caption of the case will
              be recaptioned, properly naming … Mildred Calkins
              as the Plaintiff.

N.T., 8/18/14, at 26 (emphasis added).

       Instantly, the trial court’s order stated that Appellees’ preliminary

objections were sustained and Appellant’s complaint was dismissed.             Trial

Court Order, 2/13/15, at 1. However, after August 18, 2014, the trial court

no longer had any preliminary objections before it to sustain on this issue.

Butz withdrew his preliminary objection that asserted lack of capacity to sue,

and St. Luke’s never raised such a preliminary objection in the first instance.

In my view, it was error for the trial court to then sua sponte revive the

issue.1   See Drake Mfg. Co., supra.             The Majority concludes that this is

irrelevant because the trial court was correct on the merits of the now

waived issue. Majority Memorandum at 7. However, I cannot agree that we

may ignore an explicit permissible waiver on the basis that the trial court
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1
 In light of my conclusion, any issue pertaining to the statute of limitations
would be moot.



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was ultimately correct on the merits of the waived issue.      See, e.g.,

Huddleston v. Infertility Ctr. of Am., 700 A.2d 453, 457 (Pa. Super.

1997) (concluding trial court erred in sua sponte determining that the

appellant lacked the capacity to sue when said issue was waived as not

raised in preliminary objections).

      Based on the foregoing, I conclude the trial court erred when it sua

sponte sustained Butz’s withdrawn preliminary objections based on lack of

capacity to sue.   As a result, I would address the balance of Appellant’s

issues on appeal. I respectfully dissent.




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