Prevish v. Northwest Medical Center Oil City Campus

• Decision Date: 04 April 1997
• Docket Number: CENTER--OIL
• Citation: 692 A.2d 192
• Parties: Thomas D. PREVISH, Executor of the Estate of Judith A. Bills, Deceased, Appellant, v. NORTHWEST MEDICALCITY CAMPUS and Robert M. Pilewski, M.D., Appellees.
• Court: Pennsylvania Superior Court

Page 192

692 A.2d 192

Thomas D. PREVISH, Executor of the Estate of Judith A Bills, Deceased, Appellant, v. NORTHWEST MEDICAL CENTER--OIL CITY CAMPUS and Robert M Pilewski, M.D., Appellees.

Superior Court of Pennsylvania.

Argued Sept. 4, 1996.

Filed April 4, 1997.

David J. Watson, Pittsburgh, for appellant.

Matthew W. McCullough, Erie, for Northwest, appellee.

Lynn E. Bell, Pittsburgh, for Pilewski, appellee.

SAYLOR, Judge:

Has a survival action been timely commenced, when a writ of summons naming the decedent's estate as plaintiff is filed before the statute of limitations has run and a complaint naming the executor of the estate as plaintiff is filed after the statute of limitations has run?

This is the fundamental issue presented by the appeal of Plaintiff/Appellant, Thomas D. Prevish, executor of the estate of Judith A. Bills, from the order of the Court of Common Pleas of Venango County sustaining the preliminary objections of Defendants/Appellees, Northwest Medical Center-Oil City Campus ("Northwest") and Robert M. Pilewski, M.D., and striking the complaint.

Appellant urges us to find that either the "relation back" doctrine or Section 3376 of the Probate, Estates and Fiduciaries Code ("the Probate Code"), 20 Pa.C.S.A. § 3376, operates to save the present action from the bar of the statute of limitations. Appellees argue that both of Appellant's theories are unavailing. We agree, and therefore affirm.

The history of the case is as follows: From September 11, 1992, until October 15, 1992, the decedent, Judith A. Bills, was hospitalized at Northwest, where Dr. Pilewski treated her for meningitis. She died of unrelated causes on June 12, 1994.

The present action was commenced on September 8, 1994, when Appellant, through his attorney, caused a writ of summons to be filed against Appellees. The caption of the writ identified the plaintiff as "Estate of Judith A. Bills, Deceased."

On November 18, 1994, Appellant filed a complaint, having been ruled to do so by Appellees. The caption of the complaint identified the plaintiff as "Thomas D. Prevish, Executor of the Estate of Judith A. Bills, Deceased." In the complaint it was averred that Appellant had been appointed executor on November 15, 1994. The gravamen of the complaint, which was brought pursuant to the Survival Act, 42 Pa.C.S.A. § 8302, was that Appellees' allegedly negligent treatment of Mrs. Bills had caused her to suffer a stroke and paralysis which could have been prevented. The complaint sought damages for the medical expenses and pain and suffering that Mrs. Bills had sustained while she lived.

Both Appellees filed preliminary objections in response to the complaint. Northwest asserted in its "Preliminary Objections/Motion to Strike" that Appellant, by amending the caption of his pleading to correct the name of a party without having obtained either the consent of opposing counsel or leave of the court, had violated Pa.R.C.P. No. 1033. Rule 1033 provides in pertinent part that

[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.

Northwest asked the court to strike the complaint pursuant to Pa.R.C.P. No. 1028 "since it does not conform to law." In his answer Appellant argued that the correction of the plaintiff's name in the caption without consent of counsel or leave of court did not require dismissal of the action.

The preliminary objections filed by Dr. Pilewski were more detailed, asserting in pertinent part the following:

4. In a survival action pursuant to 42 Pa.C.S.A. § 8302, the statute of limitations begins to run on the date of injury. If a period of two years has expired following the date of injury, an action for such injury is barred and cannot be asserted by the personal representatives of the injured person following his death. Baumgart v. Keene Building Products Corp., 430 Pa.Super. 162, 633 A.2d 1189 (1993).

5. Defendant seeks a Motion to Strike plaintiff's Complaint in its entirety as the defect of suing in the name of the estate of a decedent rather than in the name of the personal representative thereof may not be amended after the running of the statute of limitations on the cause of action, since it would constitute the introduction of a new party. 21 Standard Pennsylvania Practice 2d § 115:7; Mallick v. Middletown Township, 60 Pa. D. & C.2d 79 (1972).

6. Defendant seeks a Motion to Strike plaintiff's Complaint in its entirety as the caption amendements [sic] in the Complaint is in direct violation of Pennsylvania Rule of Civil Procedure 1033. When a party amends a pleading without first seeking consent of opposing counsel or leave of court, the proper form of objection is a Motion to Strike. Mackey v. Adamski, 286 Pa.Super. 456, 429 A.2d 28 (1981); Rang v. Allentown Women's Center, 5 Pa. D. & C.4th 157 (1989).

Dr. Pilewski asked the court to grant the preliminary objections and dismiss the complaint in its entirety.

In response Appellant filed an answer in which he asserted, first, that "under the doctrine of relation back, an amendment designating the personal representative as plaintiff after the running of the Statute of Limitations, does not constitute the introduction of a new party"; and, second, that "an amendment adding the name of the personal representative to a timely filed survival action is not in violation of [Rule] 1033."

On March 20, 1995, after oral argument, the trial court entered an order sustaining Appellees' preliminary objections and granting the motion to strike the complaint. In an accompanying opinion, the trial court observed that Rule 1033 required a party to seek either consent of opposing counsel or leave of court before amending the caption on a pleading, that Appellant had amended the caption of his complaint without seeking either consent of counsel or leave of court, and that the proper form of objection to Appellant's conduct was a motion to strike. The court then proceeded as follows:

Based on [Appellant's] Complaint, the last possible date of injury was October 15, 1992. [Appellant's] Writ of Summons was thus filed before the expiration of the two year statute of limitations, but the Complaint was filed after the expiration of the statute. The paramount issue is thus whether [Appellant's] caption amendment in the Complaint is permissible pursuant to Rule 1033.

In other words, the court undertook to determine whether leave to amend should be granted retroactively. Relying on a Bucks County case, Mallick v. Middletown Township, 60 Pa. D. & C.2d 79 (1972), the court concluded that it should not:

The Writ of Summons, captioned "Estate of Judith A. Bills, Deceased", was filed before the expiration of the two year statute of limitations on October 15, 1994. [Appellant's] Complaint, with Thomas D. Prevish named as the executor of the Estate of Judith A. Bills, was filed on November 15, 1994,[ ¹] after the expiration of the two year statute of limitations. As an estate has no capacity to sue and a personal representative was not designated until after the expiration of the statute of limitations, [Appellant] may not now amend the Complaint.

Opinion, March 20, 1995, at 4 (emphasis in original). The court found no merit in Appellant's relation back argument, concluding that the case law cited by Appellant was distinguishable.

On March 28, 1995, Appellant filed a notice of appeal to the Superior Court from the order striking the complaint. On April 5, 1995, he filed with the trial court an "application for reconsideration of order of March 20, 1995 and motion to amend pursuant to [Rule] 1033." Appellant asked the trial court to grant reconsideration of the order, as it was empowered to do under Pa.R.A.P. 1701(b), ² and to acknowledge that the statute of limitations on the survival action had been extended by Section 3376 of the Probate Code until the end of one year following Mrs. Bills' death. Both Appellees filed responses opposing reconsideration, and the trial court took no action on Appellant's application.

In response to the court's directive of March 28, 1995, Appellant filed a statement of matters complained of on appeal. In the statement he included not only his claims based on the relation back doctrine and on Section 3376, but also a claim that the statute of limitations had yet to expire owing to the "discovery rule."

A panel of this Court reversed the trial court's order, finding that Section 3376 of the Probate Code extended the applicable statute of limitation. Reargument was granted before the Court en banc.

We turn now to the merits of the issues raised, in the alternative, by Appellant. ³ First, Appellant argues that the trial court erred in failing to recognize that under the discovery rule there exists an issue of fact as to when the statute of limitations began to run on the survival action. Second, Appellant contends that the trial court erred in failing to recognize that in fact the statute of limitations had not expired by the time the complaint was filed because Section 3376 of the Probate Code operated to extend the statute until one year after the decedent's death. Finally, Appellant argues that even if the statute had expired before the complaint was filed, the trial court erred in refusing to apply the "relation back" doctrine to permit the amendment of the caption.

In considering these issues, we are mindful that

preliminary 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. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). All doubts in this determination should be resolved by overruling the preliminary objections. National Check v. First Fidelity Bank, 442 Pa.Super. 211, 214, 658 A.2d 1375, 1377 (1995).

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