Ehrhardt v. Costello
| Decision Date | 22 April 1970 |
| Citation | 264 A.2d 620,437 Pa. 556 |
| Parties | Willard W. EHRHARDT, Appellant, v. Ovidio COSTELLO. |
| Court | Pennsylvania Supreme Court |
James A. Ashton, Ashton, Stitt & Valaw, Robert King Stitt, III, Ashton & Stitt, Pittsburgh, for appellant.
B Patrick Costello, Costello & Snyder, Greensburg, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN ROBERTS and POMEROY, JJ.
On June 4 1963, Willard Ehrhardt (Ehrhardt) owned and operated a motor vehicle which on that date was involved in an accident with another motor vehicle operated by Ovidio Costello (Costello). As a result thereof, Ehrhardt, allegedly, suffered injuries to his person and damage to his motor vehicle. The accident occurred in Rostraver Township, Westmoreland County.
Unknown to Ehrhardt, Costello died on November 22, 1963, five and one-half months subsequent to the accident. [1]
On May 28, 1965--seven days prior to the expiration of the period of statutory limitation of actions for the recovery of damages for personal injuries--Ehrhardt filed a praecipe for and caused a writ of summons to be issued out of the Court of Common Pleas of Westmoreland County. The filing of such praecipe, irrespective of whether the Prothonotary issued the writ or the Sheriff served it, constituted the 'commencement' of an action under Pa.R.Civ.P. 1007(1), 12 P.S. Appendix, sufficient to toll the statute of limitations.
On June 2, 1965, the Sheriff of Westmoreland County deputized the Sheriff of Washington County to serve the writ on Costello and, on June 9, 1965, this writ was returned 'mortuus est' as to Costello. [2]
At this point we note: (1) while this writ could have been reissued at any time within two years from the date of its issuance under Pa.R.Civ.P. 1010(a) and (b), and the statute of limitations would be thus tolled for a period of two years from the date of reissuance (Peterson v. Philadelphia Suburban Trans. Co., 435 Pa. 232, 255 A.2d 577 (1969); Rufo-Bastian-Blessing Co., 420 Pa. 416, 418, 218 A.2d 333 (1966); Marucci v. Lippman, 406 Pa. 283, 285, 177 A.2d 616 (1962); Zarlinsky v. Laudenslager, 402 Pa. 290, 295, 167 A.2d 317 (1961)), the death of Costello precluded and prevented such reissuance against Costello individually; (2) at the time of his death, Costello was not a Party to any action instituted by Ehrhardt and, obviously, could not become a Party post-mortem to any action (Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597 (1935)); (3) the fact that the filing of the praecipe for the writ constituted the 'commencement' of an action (Salay v. Braun, 427 Pa. 480, 235 A.2d 368 (1967)) does not avail Ehrhardt because Costello predeceased the filing of the writ by almost sixteen months.
After the sheriff's return of 'mortuus est' nothing transpired until May 18, 1967 when, at Ehrhardt's instance, the Register of Wills of Washington County granted letters of administration in Costello's estate to one Frank Caroll. [3]
On May 29, 1967--almost four years after the happening of the accident and within two years after issuance of the writ of summons--Ehrhardt, without reissuing the writ of summons, caused a complaint in trespass to be filed in the Court of Common Pleas of Westmoreland County. This complaint was filed to the same number and term as that of the original writ of summons. by reason of the provisions oF pA.R.ciV.P. 1007(1) and (2), we must consider this complaint as a 'pleading' and not a 'process'. See: Yefko v. Ochs, 437 Pa. 233, 263 A.2d 416 (1970). However, even if we were to treat the complaint as a 'process' and not as a 'pleading', such complaint was filed untimely, almost four years having passed since the date of the accident. [4]
On June 23, 1967, this complaint was served on Costello's personal representative and, on July 13, 1967, the latter filed preliminary objections which combined a motion to strike off the complaint and raised a question of jurisdiction over the person. On July 21, 1967, Ehrhardt then secured a rule to show cause why Costello's personal representative should not be substituted in the action against Costello. On July 31, 1967, Costello's personal representative again filed preliminary objections and, shortly thereafter, by leave of court, filed an answer. On November 29, 1967, the preliminary objections of Costello's personal representative were sustained by the court below and later, at the instance of Ehrhardt, the judgment from which the instant appeal stems was entered in favor of Costello's personal representative and against Ehrhardt.
The Sole issue raised on this appeal is the alleged error on the part of the court below in refusing to grant a compulsory substitution of Costello's personal representative in the action commenced by writ of summons against Costello individually.
Ehrhardt seeks to substitute, under Pa.R.Civ.P. 2352, Costello's personal representative as a party in the action originally 'commenced' against Costello. At the time of Costello's death, the action against him had not been 'commenced' and, obviously, he had not been served with any process against him in any action and, therefore, Costello never became a 'party' to a pending action. Rule 2351 [5] defines a 'successor' as anyone 'who by operation of law, election or appointment has succeeded to the interest or office Of a party to an action.' (Emphasis supplied). Rule 2352(a) and (b) provides the method for the substitution in a 'pending action' of a 'successor' to a 'party to a pending action'.
In the case at bar, while Caroll is the personal representative of the estate of Costello, he is clearly not a 'successor' to an interest of Costello in a 'pending action' so as to permit the application of Rule 2352. During his lifetime, Costello was not a 'party' to any action instituted against him by Ehrhardt and could not, Post-mortem, be made a party. [6] It is clear beyond question that Costello was not 'a party to a pending action' so as to compel the substitution of his personal representative in such action.
The death of an individual, such as Costello, while it renders a suit against him as an individual impossible, ordinarily would not deprive one aggrieved by his actions of the right to institute an action against the personal representative of his estate. The Fiduciaries Act of 1949 (Act of April 18 1949, P.L. 512, Art. VI, § 601, 20 P.S. § 320.601) provides: 'All causes of action or proceedings, real or personal, except actions for slander or libel, shall survive the death * * * of the defendant * * *.' See: Johnson v. Peoples First Nat. Bank & Trust Co., 394 Pa. 116, 123, 145 A.2d 716, 719--720 (1958). Such action may be instituted against the decedent's personal representative. ...
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