Montanya v. McGonegal

• Decision Date: 01 August 2000
• Citation: 757 A.2d 947
• Parties: Pamela MONTANYA and Michael Montanya, Appellants, v. Robert McGONEGAL, Appellee.
• Court: Pennsylvania Superior Court

757 A.2d 947

Pamela MONTANYA and Michael Montanya, Appellants, v. Robert McGONEGAL, Appellee.

Superior Court of Pennsylvania.

Argued June 13, 2000.

Filed August 1, 2000.

Robert N. Hunn, Philadelphia, for appellants.

James T. Moughan, Plymouth Meeting, for appellee.

BEFORE: HUDOCK, STEVENS, JJ., and CIRILLO, President Judge Emeritus.

STEVENS, J.:

¶ 1 This is an appeal from the order entered in the Court of Common Pleas of Bucks County sustaining Robert McGonegal's preliminary objections¹ and dismissing Pamela and Michael Montanya's complaint with prejudice. The issue on appeal is whether the trial court erred in sustaining the preliminary objections and whether the trial court should have permitted the Montanyas to amend their complaint naming a new defendant once the statute of limitations had expired. We affirm.

¶ 2 The relevant facts and procedural history are as follows: On May 26, 1997, a vehicle being driven by Robert McGonegal collided with a vehicle being driven by Pamela Montanya, who was injured as a result of the accident. On April 27, 1999, Pamela Montanya and her husband, Michael Montanya, filed a complaint against Mr. McGonegal averring that he was negligent in the operation of his motor vehicle.² The sheriff served the complaint upon Agnes McGonegal, Mr. McGonegal's widow.

¶ 3 On July 1, 1999, preliminary objections were filed on behalf of Mr. McGonegal, who died on December 27, 1997. In the preliminary objections, it was alleged that the administrator/administratrix of Mr. McGonegal's estate was not named as a party defendant, that the two-year statute of limitations had elapsed with regard to the Montanyas' claim, and that the complaint was filed more than one year after Mr. McGonegal's death.³ As a result, it was requested that the Montanyas' complaint be dismissed for lack of personal jurisdiction, improper service, and because a suit against a deceased person is a legal nullity. On July 19, 1999, the Montanyas filed an answer to the preliminary objections, alleging that they were unaware that Mr. McGonegal was deceased and that they had been misled with regard thereto. The Montanyas requested that the preliminary injunctions be denied and that they be permitted to file a new complaint.

¶ 4 On July 20, 1999, the Montanyas filed a motion for leave to take discovery as to whether the Montanyas were mislead as to the death of Mr. McGonegal, and, on August 20, 1999, the trial court overruled the preliminary objections with leave to refile upon the completion of discovery.

¶ 5 On October 20, 1999, following the completion of discovery, preliminary objections were filed for a second time on Mr. McGonegal's behalf, thereby seeking dismissal of the Montanyas' complaint on the same grounds raised previously, and the Montanyas filed a response. On December 14, 1999, the trial court granted the second preliminary objections and dismissed the Montanyas' complaint with prejudice. On December 29, 1999, this appeal was filed, and the trial court filed an opinion.⁴

[P]reliminary objections which result in the dismissal of a cause of action should be sustained only in cases that are [so] `clear and free from doubt' that the plaintiff will be unable to prove legally sufficient facts to establish any right to relief. All doubts in this determination should be resolved by overruling the preliminary objections.

Prevish v. Northwest Medical Center-Oil City Campus, 692 A.2d 192, 197 (Pa.Super.1997), affirmed, 553 Pa. 73, 717 A.2d 1023 (1998) (citations omitted).

¶ 6 It is well settled 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." Valentin v. Cartegena, 375 Pa.Super. 493, 544 A.2d 1028, 1029 (1988) (citations and quotation omitted). 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. Id.

¶ 7 Here, there is no dispute that the Montanyas filed a complaint solely against Mr. McGonegal, who was deceased prior to the filing of the complaint, and that they did not name Mr. McGonegal's personal representative as a defendant. Since case law dictates that the Montanyas were not permitted to simply substitute Mr. McGonegal's personal representative as the defendant, See Id., the Montanyas' only recourse was to file a new action against Mr. McGonegal's personal representative. In this case, the statute of limitations expired before the Montanyas sought to file a new action.⁵

¶ 8 However, this does not end our inquiry as the Montanyas allege that Mr. McGonegal's personal representative actively misled them to believe that Mr. McGonegal was alive after the complaint was filed and that Mr. McGonegal's true status was not revealed until approximately one month after the statute of limitations had expired, when the preliminary objections were filed on Mr. McGonegal's behalf. As such, they argue that they should have been permitted to file an action against Mr. McGonegal's personal representative, even though the statute of limitations had expired. We disagree.

In Pennsylvania, a cause of action for negligence is controlled by the two-year statute of limitations set forth in 42 Pa. C.S.A. § 5524(2). The statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations. Where a defendant or his agent actively misleads the plaintiff as to the identity of the proper defendants until after the statute of limitations has expired, the proper remedy is to toll the statute of limitations.

Hubert v. Greenwald, 743 A.2d 977, 981 (Pa.Super.1999) (citations and quotation omitted). See Romah v. Hygienic Sanitation Co., 705 A.2d 841 (Pa.Super.1997),

affirmed,

558 Pa. 378, 737 A.2d 249 (1999). "[D]efendant's conduct need not rise to fraud of concealment in the strictest sense, that is, with an intent to deceive; unintentional fraud or concealment is sufficient." Molineux v. Reed, 516 Pa. 398, 400, 532 A.2d 792, 794 (1987) (citations omitted). "In order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied." Kingston Coal Co. v. Felton Mining Co., Inc., 456 Pa.Super. 270, 690 A.2d 284, 291 (1997) (citation omitted). "The plaintiff has the burden of proving active concealment through clear and convincing evidence." Hubert, 743 A.2d at 981 (citation omitted).

¶ 9 Here, the Montanyas contend that Mr. McGonegal's wife, Agnes, and his insurance carrier actively concealed the fact that Mr. McGonegal was dead. Specifically, the Montanyas contend that they were lulled into a false sense of security because (1) Agnes McGonegal accepted service from the sheriff of the complaint at issue without indicating that her husband was dead, (2) pre-suit correspondence with Mr. McGonegal's insurance carrier indicated that Mr. McGonegal was alive, and (3) the insurance carrier concealed Mr. McGonegal's death after the complaint was filed and Agnes McGonegal told them about her husband's death.

¶ 10 As to the Montanyas' claim regarding Agnes McGonegal's acceptance of service, the record reveals that the sheriff "served Robert McGonegal by handing [the complaint] to Agnes McGonegal, family member." There is no allegation that Agnes affirmatively indicated to the sheriff that her husband was dead or alive. The Montanyas argue, however, that Agnes had an affirmative duty to "pick up the phone" and contact the Montanyas' attorney when she received the complaint to inform the attorney that her husband was deceased, and that her silence in this regard constitutes concealment.⁶

¶ 11 We conclude that Agnes' mere silence as to the status of her husband is insufficient to toll the statute of limitations. As this Court has held, the defendant must commit some affirmative independent act of concealment upon which ...