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Archive for the tag “statute”

Don’t Like An Award From Compulsory Arbitration? You Must Appeal

Can a party to a case where a judgment has been entered in compulsory arbitration have that judgment modified without appealing? This is the underlying question in the recent matter heard by the Pennsylvania Superior Court, captioned as Blucas v. Agiovlasitis, 2018 Pa.Super. 25.

In Blucas, tenants brought suit against their former landlord for the return of their security deposit. The landlord, of course, claimed the leasehold had damages for which he incurred expenses and he needed compensation/reimbursement from the tenants.

The case was tracked into compulsory arbitration pursuant to 42 Pa.C.S.A. Section 7361. After a hearing before a panel of arbitrators, a judgment was entered awarding the tenants $10,000 and the landlord $1,450, for a net award to the tenants of $8,550.

Pursuant to Pa.R.C.P. 1307 and established case law, the entry of an award following compulsory arbitration has the force and effect of a final judgment. The court contrasted an award flowing from compulsory arbitration with one following statutory or common law arbitration. Unlike an award from compulsory arbitration, a party must petition the trial court to confirm an award from statutory or common law arbitration 30 days or more following the date of the award. For an award from compulsory arbitration neither party must file a præcipe to enter judgment on the award.

In July 2016, an award and notice of the same was entered on the docket in this matter, and was final (unless appealed). A judgment on the award was entered in November 2016. Within less than two weeks following the entry of the judgment in Blucas, the landlord remitted a check to the tenants for the full amount of the judgment ($8,550). Pursuant to Pa.R.C.P. 1307, a party must file an appeal within 30 days from when the award and notice are entered on the docket in order to further litigate the matter. No appeal was ever filed. Instead of appealing, the tenants, in April 2017, filed a motion for costs and prejudgment interest (motion) requesting a recalculation of the award.

The court reviewed the various case, statutory, and procedural laws applicable to the instant matter, and unequivocally concluded that the sole remedy for an adverse or unsatisfactory compulsory arbitration award is an appeal within 30 days from the award and notice. The only exception to the above the court could discern is Pa.R.C.P. 1307(d), which provides for a means to “mold” a previously entered award for obvious errors, in either arithmetic or language, that do not go to the substance and/or merits of the award.

The tenants’ motion did not address basic errors in arithmetic and language but, rather, asked the trial court to award them additional damages in prejudgment interest and costs. Inexplicably, and without citing support, the trial court granted the tenants’ motion, which led to the landlord’s appeal to Pennsylvania Superior Court, resulting in the decision, cited above, that is the subject of this article.

Superior Court noted that the motion did not comply with the law and procedure cited above.  The motion clearly is not an example of “molding.” More importantly, it was not filed within 30 days of the award.  The trial court was unclear as to precisely how it calculated the award and what the figures in the award exactly represented (e.g., interest and costs? security deposit? pet deposit? etc.). As a result, there is no way for Superior Court to even attempt to “mold” the award regarding prejudgment interest, even if it could. Consequently, as the tenants did not file an appeal of the compulsory arbitration award, the trial court was without authority to attempt to revisit the award with regard to prejudgment interest.

As always, it is absolutely critical for practitioners to be totally cognizant of the applicable deadlines and time periods mandated by law or procedure and act accordingly to ensure compliance with the same and opportunity to litigate a matter as fully as possible.

Originally published in The Legal Intelligencer on March 19, 2018 and can be found here.

A Collection of Personal Injury Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of personal injury legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

Musings:

My Articles:

A Collection of Contract and Debt Collection Writings by James W. Cushing, Esquire

Over the course of my career, I have written extensively on a wide variety of contract law issues and debt collection legal principles.  These writings have been published in The Legal IntelligencerUpon Further Review, and The Pennsylvania Family Lawyer as well as posted onto my blog.  I have collected these articles and blog posts and have listed them below.  Thanks for reading!

My Articles:

Musings:

The Secret Defense to Debt Collection Matters

Unfortunately, many people find themselves in a situation where they get behind on paying their bills and, due to lack of funds, wind up not paying some of them.  Not paying one’s bills will more often than not result in that debt being sold to a collections agency and that agency suing the debtor for payment (and adding on all kinds of things, like interest, attorney’s fees, penalties and the like to boot).

Selling one’s debt to a collection agency is an important step in the process that directly affects the subsequent lawsuit against the debtor.  Typically, large lenders – especially lenders like credit cards companies – have a fair amount of debtors who stop paying (for whatever reason) on the debt owed to the lender which results in their debts being sent to collections.  When these lenders send debts to collections, they do so by selling the debts to a collection agency.  When they sell the debts to a collection agency, they will often sell the debts in bulk, often for pennies on the dollar.  The transaction benefits the creditor as it gets something for the debts owed without having to pursue costly and time consuming litigation.  The transaction benefits the collection agency because it can pursue collection (including law suit) against a debtor for the full amount despite having bought the debt for far less than its principal value, let alone its value inflated by interest and such.

More often than not, when debts are sold to collection agencies, the initial creditor (e.g.: a credit card company) simply provides an affidavit to the collection agency regarding the amount of the debts and the names of those who owe the debts.  Typically, no other document is supplied by the initial creditor to the collection agency, including any contracts with the debtor or anything bearing the signature on the debtor.  Once the collection agency assumes the debt, it has the right to bring suit against the debtor for the unpaid debt.

The lack of documentation of the contract with the debtor is absolutely key to any defense to the collection of the debt.  If the creditor brings suit against the debtor in the Court of Common Pleas and does not attach the contract between the debtor and the creditor which underlies the alleged debt, the debtor can file objections to the complaint (the document which initiates the law suit) asking for it to be dismissed due to the lack of a contract.  I can say, from personal experience, that such a tactic works as, very often, the collection agency pursing the debtor simply does not have the underlying contractual documentation to prove its case against the debtor.

If the case is brought in small claims court, the creditor does not have the obligation to include a copy of the contract to the complaint, so successfully defending against a collections law suit takes some shrewd strategy.  The lack of documentary evidence is still a huge problem for the creditor, but the small claims aspect of this matter makes the approach different and much trickier.  As the complaint does not require the contract to be appended to it, and the primary place for these matters to be resolved is at a hearing before a judge, the creditor has the procedural advantage.  At the hearing, the collection agency, armed with an affidavit from the initial creditor (as described above), secures almost all of the other evidence it needs to win against the debtor through the debtor’s testimony.

Here is how the hearing would play out: the creditor describes the claim to the judge, which is that the debtor had a contract with a credit card company (for example), he did not pay the debt owed, and is now in collections and all of this is supported by the affidavit.  Now, the affidavit, taken alone, is insufficient to win the case as there is no evidence that the debtor actually contracted with the creditor.  So, at the appropriate time during the trial, the creditor will ask the debtor some questions (i.e.: cross-examination).  These questions will be something like: “did you have a credit card from XYZ company on these dates”?  “Did you make charges on it?” “Did you make all the payments on it?”  “Do you owe $XYZ on the credit card?” And other questions like it.  At the end of the examination, the debtor himself provides all of the evidence against himself that the creditor needs to win the case against him.   As a result, the creditor will win the case against the debtor thanks to the debtor supplying all of the evidence, via his testimony, need by the creditor.

So, how does a debtor avoid the fate of the debtor in the above scenario?  That is where a good lawyer comes into play.

Limiting Legal Malpractice Claims: Applying the Glenbrook Analysis

The statue of limitations for a legal malpractice action in Pennsylvania is two years from the date of the malpractice; however that time period may be extended under certain circumstances.  In Glenbrook Leasing Co. v. Beausang, 839 A.2d 437 (Pa. Super. 2003), affirmed, 881 A.2d 1266 (Pa. 2005), the Pennsylvania Superior Court explored the viability of various ways to potentially extend that two year period.

Plaintiff in Glenbrook is a real estate partnership which purchased office space in a condominium development to be used as medical offices.  The agreement of sale for the office space included language granting Plaintiff use (and alleged ownership) of 35 parking spaces.  Nothing was placed in the deed regarding Plaintiff’s ownership of the aforesaid parking spaces.

About six years later, the condominium association took action to limit Plaintiff’s use of the aforesaid 35 parking spaces.  Unsurprisingly, a dispute arose between Plaintiff and the condominium association regarding the ownership and use of the parking spaces, which eventually evolved into litigation.  The litigation culminated in a ruling in favor of the condominium association.  The ruling was based on the merger doctrine, which generally states that any guarantee to be granted in a real estate transaction must be stated in the deed to the subject property.  As applied to the instant matter, Plaintiff was considered not to have any ownership rights over the parking spaces as they were not memorialized in the deed to the property.

When the initial real estate transaction took place, Plaintiff was represented by Defendant, a real estate law firm.  Plaintiff believed that its loss in the litigation against the condominium association, and the resulting loss of the 35 parking spaces, was a direct result of the legal malpractice of Defendant in failing to take into consideration the merger doctrine, and by failing to include language regarding the parking spaces in the deed to the property at issue.  About a year after the conclusion of the litigation against the condominium association, and about six years after the association first presented the issues regarding the deed, and its lack of language dealing with the parking spaces to Plaintiff, the company brought suit against Defendant law firm, claiming it committed legal malpractice.

Defendant ultimately filed a motion for summary judgement, claiming that Plaintiff brought suit far beyond the two year statute of limitations.  The trial court ruled in favor of Defendant.  On appeal, the Superior Court affirmed the trial court’s ruling, and the Supreme Court issued a per curiam order affirming the Superior Court’s ruling.  It is the Superior Court’s opinion that is the subject of this article.

While the statue of limitation in a legal malpractice claim is two years, that period can be extended via the equitable discovery rule which sates that the two years is initiated not at the occurrence of the malpractice, but when it was, or should have been, discovered.  The Court ruled that Plaintiff discovered, or should have discovered, that there may have been legal malpractice six years before it initiated suit against Defendant (or four years longer than the two year statute allows) when the dispute with the condominium association first arose.

Plaintiff then argued that the Court should apply the “continuous representation rule” which states that the limitations period would not begin to run until plaintiff terminated Defendant’s services.  The Court was unmoved by Plaintiff’s argument to extend the legal malpractice statute of limitations based on the continuous representation rule.  The Court noted that the rule was not the law of Pennsylvania (although it is in other jurisdictions) and it is not the place of the Superior Court to adopt new rules without authority to do so.

Plaintiff next argued that the limitations period should be extended through estoppel, asserting that the “special relationship” between a lawyer and his client lulled Plaintiff into a false sense of security, through fraud, or deception, or concealment, to trust Defendant beyond when it would have been prudent to do so.  This sort of argument has traction among physicians and patients and Plaintiff attempted here to apply it to attorneys and clients.  The Court rejected this argument as well, as it found Defendant was completely candid with Plaintiff regarding the claims made by the condominium association, including providing Plaintiff with the first allegation of their own malpractice nearly six years prior to Plaintiff’s bringing suit.

Finally, Plaintiff argued that the question of precisely when it discovered the malpractice is a question of fact that should have been decided by a jury, not via a motion for summary judgement.  The Court rejected this argument as well, ruling that the facts in this matter were abundantly clear as to when Plaintiff discovered the malpractice.

The statute of limitations is critical to be aware of when considering bringing suit.  Although the Court made a variety of rulings, as described above, it is significant and useful in that it lays out some guidelines as to how to apply the various means to extend the statute of limitations and notably refuses to adopt and apply the continuous representation rule.

Originally published in Upon Further Review on September 24, 2015 and can be seen here.

US Supreme Court Weighs in on Threats Over Social Media

The new reality of social interaction includes the popular, and seemingly always proliferating, social media websites like Facebook and Twitter.  Considering the increasing ubiquity of social media, it was only a matter of time before the United States Supreme Court would weigh in on its use, which it had opportunity to do in the matter of Anthony Douglas Elonis v. United States, 135 S.Ct. 2001 (2015).

 

In the Elonis matter, the petitioner Anthony Douglas Elonis’s wife left him in May 2010, taking their children with her.  Following their separation, Mr. Elonis began listening to “violent music” and posting so-called “rap lyrics” to his Facebook page.  Eventually he changed his name on his Facebook profile to “Tone Dougie,” a rap-style nom de plume, in order to create an “on-line persona.”  His rap lyrics contained rather violent and graphic language but did contain a disclaimer that his lyrics were fictions with no intentional resemblance to real persons.  He also said on Facebook that he writes these lyrics, and other such posts, as a form of therapy for himself to deal with the pain of the breakup of his family.

 

Unfortunately for Mr. Elonis, people who viewed his Facebook posts did not seem to appreciate his therapeutic efforts.  Evidently, after the Halloween following his separation, Mr. Elonis posted a photograph of himself from a Halloween event at his place of employ holding a toy knife to his co-worker’s throat, accompanied by a caption reading “I wish.”  Mr. Elonis was fired by his employer for this post due to its violent and threatening nature regarding his co-worker.

 

Mr. Elonis responded to his termination from employment at an amusement park with the following Facebook post: “Moles! Didn’t I tell y’all I had several? Y’all sayin’ I had access to keys for all the f***in’ gates. That I have sinister plans for all my friends and must have taken home a couple. Y’all think it’s too dark and foggy to secure your facility from a man as mad as me? You see, even without a paycheck, I’m still the main attraction. Whoever thought the Halloween Haunt could be so f***in’ scary?””  This post formed the basis for the first count of his criminal indictment for threatening park patrons and employees.

 

In addition to the above, Mr. Elonis also posted crude, demeaning, and violent material regarding his ex-wife, including a long post adapting a comedian’s sketch about how to avoid overtly saying one wishes to kill the president to a post of similar content about killing one’s wife.  In the post he included accurate details about his ex-wife’s home and rhetorically asked whether the reader is willing to “go to jail for [one’s] Constitutional rights.”

 

Upon seeing the above-mentioned post, his ex-wife began to fear for her life and secured a protection order against Mr. Elonis.  In response Mr. Elonis posted on Facebook what appeared to be lyrics or poetry contemplating whether a protection order could stop a bullet and suggested blowing up a police department with a bomb.  This post formed the basis of two more counts of his criminal indictment.  The fourth count of Mr. Elonis’s criminal indictment flowed from a subsequent Facebook post regarding potentially mass killing a local kindergarten class.  After the FBI investigated the aforesaid post, Mr. Elonis followed it up with what formed the basis of the fifth count of his criminal indictment, namely a post threatening the life of FBI agents (though none by name).

 

Mr. Elonis was eventually indicted for making threats to injure patrons and employees of the park, his estranged wife, police officers, a kindergarten class, and an FBI agent.  All of these threats were in violation of 18 U.S.C. Section 875(c) which states “[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

 

Mr. Elonis filed a motion to dismiss the indictment on the basis that none of the charges against him contained any allegation that he intended to threaten anyone.  The District Court (his matter originated in the Eastern District of Pennsylvania) denied the motion.  At the trial for the charges Mr. Elonis testified that his posts were emulating rap lyrics (especially those of Eminem who also penned lyrics about killing his wife) and, therefore, were made without any intent to threaten anyone.  The prosecution presented witnesses who testified that they felt threatened and in fear of injury.  At the conclusion of the trial, Mr. Elonis’ requested that the jury be instructed that in order for him to be convicted the prosecution must prove he had an intention to threaten.  His request was denied.  Ultimately, Mr. Elonis was sentenced to three years and eight months’ incarceration and three years’ suspended release.  Mr. Elonis then appealed his conviction to the Court of Appeals of the Third Circuit which upheld the conviction and ruled that the intent suggested by Mr. Elonis was not required by the law.  Mr. Elonis then appealed to the United States Supreme Court, and it is that Court’s decision that is the subject of this article.

 

Mr. Elonis argued to the Supreme Court that the term “threat” necessarily implies an intention to inflict harm.  Unpersuaded, the Court pointed out that the definition of “threat” proffered by Mr. Elonis speaks to the message conveyed by the threatening statement and not the mental state of the speaker.  The government noted that the other crimes in the statutes neighboring 18 U.S.C. Section 875(c) all explicitly include a mental state in their terms which suggests that the legislature intentionally left such a provision out of 18 U.S.C. Section 875(c) and, therefore, no mental state is required for conviction under this section.  The Court was unpersuaded by this argument as well indicating that all that could be concluded is that Congress laid out a broad class of crimes but simply did not include what mental state, if any, is required for conviction.  Based on the above, the Court observed that neither party sufficiently identified any indication of any particular mental state required by 18 U.S.C. Section 875(c).  Despite this, the Court recognized that any crime must carry with it some conscious action (e.g.: mens rea) and that the mere omission of a mental state from 18 U.S.C. Section 875(c) does not mean none exists.

 

After a review of the applicable case law, the Court concluded that when a criminal statute is silent on mental state, the only mens rea that can be read into it is only that which is enough to separate wrongful conduct from innocent conduct as applied to each element of the crime.  Furthermore, the Court ruled that the mental state requirement, relative to Mr. Elonis’ case, must apply to whether the communication itself contains an actual threat.  By contrast, Mr. Elonis’ conviction was based solely upon how his posts would be perceived by a reasonable person.  As a result, the Court rejected the government’s argument for a mental state closer to negligence (i.e.: “reasonable person”) as well as Mr. Elonis’ argument from ignorance asserting that he could not be convicted unless it was shown he knew the posts could be characterized as threatening.

 

Ultimately the Court reversed Mr. Elonis’ conviction.  The Court held that the jury instructions mentioned above were insufficient.  There must be something more than the prosecution merely proving that a reasonable person could regard Mr. Elonis’ posts as threats.  Instead, there must be an instruction indicating that a mental state for Mr. Elonis is necessary for conviction.  The Court was confident that the mental state requirement would be satisfied if it could be shown that Mr. Elonis knew that his posts could be understood to be a threat and/or were posted to be threatening.  Although the Court rejected a negligence standard, as noted above, the Court declined to rule whether a recklessness standard would be sufficient to convict for the crime at issue herein as that issue was not raised by the parties until oral argument and briefly at that.  The Court was reluctant to be the first tribunal to rule on the issue and, instead, opted to allow the lower courts to initially look at the issue.  Consequently, the Court also remanded Mr. Elonis’ case for further proceedings per the Court’s ruling.

Originally published on August 25, 2015 in The Legal Intelligencer and can be seen here.

Debt Acknowledgment: Going Beyond Limitations

Anyone considering bringing a lawsuit needs to be aware of the relevant statute of limitations applicable to one’s case.  A statute of limitations establishes a hard deadline by which a particular suit must be brought, which, if missed, bars the potential plaintiff from bring it.

 

Generally speaking, in the context of a debt collection contract claim, the applicable statute of limitations sets a four (4) year deadline to bring suit after a breach of contract.  This limitations period is set by 42 Pa.C.S.A. Section 5525(a)(1).  A breach of contract occurs upon non-performance of a contractual duty, which, in this case, would be the non-payment of a debt.

 

Although the four-year statute of limitations identified above serves as a hard deadline in most debt collection cases, there is an important exception to this statute which serves to extend the time to bring suit and/or serve to toll the statute of limitations: the so-called “acknowledgement doctrine.”

 

Pennsylvania law has well established the acknowledgement doctrine.  The doctrine states that “[a] clear, distinct and unequivocal acknowledgement of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute.”  In Re David Cutler Industries, Ltd., 502 B.R. 58 (2013)

 

The acknowledgement doctrine in practice serves to restart the running of the applicable statute of limitations cited above, which would begin upon a reasonable elapse of time from the date of acknowledgement.

 

For example, if the statute of limitations for the failure to pay a debt is set to expire on August 1, 2015, a debtor’s acknowledging the debt on July 25, 2015 would serve to toll the statute of limitations and reset the hard deadline set by the statute to four years after a reasonable elapse of time from July 25, 2015.  A debt customarily must be paid within thirty days of when it comes due; therefore, the new statute of limitations in the example above would be four years from August 25, 2015.

 

When litigating a breach of contract claim, particularly a debt collection matter, and a statute of limitations deadline is approaching, or has passed, practitioners would be wise to explore the possibility of trying to have the debtor acknowledged the debt at some point.  Doing so could serve to save the viability of a case and go a long way to ensuring the debt owed is paid.

 

For more information on the issues addressed above, be sure to also review these cases: Colonial Assur. Co. v. Mercantile and General Reinsurance Co. Ltd., 297 F.Supp.2d 764 (2003); Huntingdon Fin. Corp. v. Newtown Artesian Water Co., 442 Pa.Super. 406 (1995); Camenisch v. Allen, 158 Pa.Super. 174 (1945); In Re Maniatakis’ Estate, 258 Pa. 11 (1917).

Originally published in The Legal Intelligencer Blog on July 21, 2015 and can be seen here.

Acknowledging a Debt to Toll the Statute of Limitations

As every lawyer knows, the statute of limitations is the death knell for any case if the deadline it sets to bring a lawsuit is missed.

Collecting on money owed pursuant to a contract is generally governed by a four (4) year statute of limitations which begins to run upon the breach of that contract. One way to extend that four (4) year statute is to find a way to toll it. The case of In Re Michael Angelo Corry Inn, Inc., 297 B.R. 435 (W.D., PA 2003), provides one innovative way to try and toll it.  Specifically, the Court in the above case analyzed whether acknowledging a debt and promising to repay serves as a way to toll the statute of limitations.

The underlying case involved the filing of a proof of claim by a creditor against a debtor who has filed for bankruptcy. The fact that the context of the case was bankruptcy has no effect or relevance on how the statute of limitations for a contract claim functions and/or applies. The issue was the fact that the creditor did not pursue the alleged debt with any alacrity and many years passed with no action taken on the loan and/or its repayment. The time that elapsed from the potential breach was longer than four (4) years in this case and, therefore, on its face, any action to pursue the contract claim would then be barred by the relevant statute of limitations. In order to avoid the contract claim from being a non-starter due to being barred by the statute of limitations, the creditor attempted to argue that the aforesaid statute is tolled by an acknowledgment of the debt made my the debtor.

The Court agreed that the statute of limitations on contract claims can be tolled if the debtor acknowledges a debt. The caveat, however, is that acknowledgment is more than merely expressing a willingness to pay it.

The acknowledgement doctrine requires a debtor’s acknowledging the existence of, and obligation for, a debt to be clear, distinct, and unequivocal, along with a promise to pay that is similarly doubtless. The Court made it clear that there must be no uncertainty in the debtor’s identification of the specific debt owed, acknowledgment of his own obligation to pay that debt, and a clear promise to pay. A debtor who simply declares an intention or desire to honor his obligation is not considered to have made a promise to pay sufficient to toll the statute of limitations under the acknowledgment doctrine.

So, when litigating a breach of contract claim for an unpaid debt, if one thinks the case can no longer be pursued due to the expiration of the statute of limitations, remember to fully explore the acknowledgement doctrine. It may allow a creditor to successfully pursue a debtor far beyond the four (4) years permitted by the statute of limitations.

Originally published on September 8, 2014 in The Legal Intelligencer Blog and can be found here.

Statute of Limitations When a Defendant Dies

One the most basic legal principles is that statutes of limitations establish the time frames in which a civil suit can be brought in a given case and any attempt to bring suit outside of that time frame will inevitably result in the case being dismissed. For example, the statute of limitations for a personal injury matter is two years from the date the injury is, or should be, discovered (see: 42 Pa.C.S.A. §5524(1), (2), and (3)) and, for the most part, bringing a personal injury matter beyond that two year deadline will be cause to dismiss the claim.

One of the possible exceptions to the application of statutes of limitations is if the defendant dies during the pendency of the limitations period. As with any complaint, it is the duty of a plaintiff “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and then institute suit within the prescribed period,” and that includes determining whether the defendant is living or dead at the time of suit. Lange v. Burd, 800 A2d 336 (Pa.Super. 2002).

Generally speaking, a dead person cannot be sued or be a party to an action Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000); Lange v. Burd, 800 A2d 336 (Pa.Super. 2002). However, 20 Pa.C.S.A. §3383 carves out an exception to this general rule permitting a dead person to be sued within one year after his death. §3383 goes on to say that its terms ought not be construed to shorten a two year statute of limitations period. Therefore, hypothetically speaking based on the above, if someone died on the day a plaintiff discovered his injury, then the plaintiff would have two years to bring suit against the deceased. At the other end of the spectrum, if someone died on the last day of the two year statute of limitations, then the plaintiff would have an additional year to bring suit against that defendant (for a total of three years). Finally, if someone died during the statutory two year period, the last date a plaintiff could bring suit against the deceased could be either the last day of the two year statutory period or the last day of the one year period stated in §3383 above, whichever came later. Longo v. Longo v. Estep, 289 Pa.Super. 19 (1981); Rylee et ux. v. Nicoll’s Administrator, 74 Pa.D.&C. 269 (1950); Telford Coal Company v. Prothero et al., 24 Pa.D.&.C. 183 (1935).

After considering the above, the obvious question arises as to whether one can substitute another party (e.g.: an estate) for the deceased defendant in order to pursue a plaintiff’s claims. According to applicable case law, one may bring suit against a decedent’s estate in order to pursue claims that would have otherwise been against the decedent himself if he were alive. If a complaint is filed against a deceased person, it must be withdrawn and refiled against his estate instead. Montanya v. McGonegal, 757 A.2d 947 (Pa.Super.2000). The refiled complaint against the estate is subject to the same applicable statutes of limitations stated above for the decedent. See Montanya. The filing of a complaint against the deceased, instead of his estate, does not serve to toll the running of statutes of limitations described above in order to permit an action against the decedent’s estate after the expiration of statutes of limitations described above. See Lange.

The only way around the above statutes of limitations is to argue that there was some sort of fraud or intentional concealment of the death of the defendant which served to unfairly prejudice plaintiff in his attempt to bring suit. See Lange. The plaintiff does not have to prove that fraud or concealment was intentional, just simply that the opposing party’s conduct served to conceal the death of the defendant. See Montanya. When arguing that the opposing party committed fraud and/or concealed the death of the defendant, it should be noted that silence on the part of the opposing party is insufficient to constitute fraud or concealment. As a result, an insurance company or party failing to volunteer the information that the defendant is dead at any time – or even accepting service for the deceased at his residence – during the life of the claim and/or suit will not constitute fraud or concealment. See Montanya. The fraud or concealment must be the result of an affirmative action; consequently a passive action (e.g.: taking no action at all) is not an affirmative action. See Montanya. Moreover, the plaintiff has the burden of proving the fraud and/or concealment with clear and convincing evidence.

Although Pennsylvania law may provide a case with a little more life after the death of a defendant, ultimately statutes of limitations will apply to kill a case even if the death of a defendant did not do it already.

Originally published on June 24, 2014 in The Legal Intelligencer Blog and can be seen here.

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