DeFranco, N. v. Seneca Food, Appeal of DeFranco, J (memorandum)

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J-S32037-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 NORMAN DEFRANCO, BY JOANN DEFRANCO, ADMINISTRATRIX AND ANTHONY DEFRANCO, EXECUTOR, INDIVIDUALLY AND TOGETHER, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants v. SENECA FOODS CORPORATION, AND WEGMANS FOODS; JOHN/JANE DOE(S) SUED IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, Appellees No. 1900 WDA 2013 Appeal from the Order entered November 14, 2013, In the Court of Common Pleas of Erie County, Civil Division at No(s): 13157-12 BEFORE: PANELLA, DONOHUE, and ALLEN, JJ. MEMORANDUM BY ALLEN, J.: FILED: June 18, 2014 gether, 1 1 Appellants have incorrectly identified themselves as administratrix and executor. J-S32037-14 preliminary objections filed by Seneca Foods Corporation and Wegmans The trial court explained: This matter arose when [Decedent] purchased a can of green beans at Wegmans and allegedly choked on foreign object[s] contained in the can. [Mrs. DeFranco] and estate. s] However, neither [Mrs. DeFranco] nor Anthony have Memorandum Order, 11/14/13, at 1 (footnotes omitted). Our review of the record reveals the following: On September 18, 2012, Anthony filed a praecipe to issue a writ of summons against Wegmans, which listed Decedent as the sole plaintiff. Praecipe to Issue Writ of Summons, 9/18/12, at 1. The September 18, 2012 praecipe was accompanied by a letter dated September 11, 2012, from Anthony to the to [Anthony] by attorney Jamie Mead [who] was hired to file a lawsuit in this matter but instead provided [Anthony] with this writ of summons as the statue [si filing. Otherwise, please accept filing and return said writ of summons and I will file a motion to proceed in for Id. On September 19, 2012, a writ of summons signed by Kelly Spusta, Deputy, was issued against -2- J-S32037-14 Wegmans, listing Decedent as plaintiff. On the same date, the prothonotary mailed to Anthony, at the State Correctional Institution at Albion where he resides, a copy of the September 19, 2012 writ, along with a civil cover sheet and with a note asking for the sheet to be completed and returned to the prothonotary. On September 25, 2012, the writ and civil cover sheet were returned to the protho 9/19/12, at 1 (docketed 9/25/12). On September 27, 2012, a Praecipe for Ammended [sic] Writ of Summons was filed, listing the plaintiffs as Norman DeFranco, by Joann DeFranco, administratrix, and Anthony DeFranco, executor, individually and together. See Praecipe For Ammended [sic] Writ of Summons, 9/27/12, at 1. The amended praecipe was accompanied by a letter to the Erie County Office from Anthony dated September 23, 2012, stating that 11, 2012. Letter, 9/23/12, at 1. Anthony explained that the prior writ of lawyer and was incomplete. In an attempt to correct the record and filings, I am enclosing a Id. On September 27, 2012, an amended writ of summons was issued by Kelly Spusta, Deputy, listing the plaintiffs as Norman DeFranco, by Joann DeFranco, administratrix, and Anthony DeFranco, executor, individually and together. -3- See Amended J-S32037-14 Writ of Summons, 9/27/12, at 1. On September 28, 2012, Anthony filed a civil cover sheet. Civil Cover Sheet, 9/28/12, at 1. On October 2, 2012, Anthony filed a letter dated September 28, 2012, orms so I can make service to the defendants in the above- Id. On October 12, 2012, a complaint was filed against Wegmans. See generally Complaint, 10/12/12. On October 24, t Wegmans was served with the complaint on October 17, 2012. The October 24, 2012 Seneca Foods Corp[oration] at Wegmans Foods ... as they are business partners with Seneca Foods and able to accept service under P[ennsylvania] On November 21, 2012, Wegmans filed a Notice of Filing Notice of Removal of the action to the United States District Court for the Western District of Pennsylvania. On November 30, 2012, Anthony filed a Praecipe for Entry of Judgment of Non Pros/Default Judgment certifying that -4- J-S32037-14 11/30/12, at 1. On November 30, 2012, Anthony filed a letter addressed to [Anthony] must provide postage and envelopes for each defendant, however, due to my incarceration[,] I am unable to provide said stamps and envelopes and would respectfully request that you please send the two (2) On February 1, 2013, Mrs. DeFranco filed a Motion to Proceed in Forma Pauperis. On February 11, 2013, Anthony filed a letter dated McLaughlin remanded this case back to the state Court based on my filing was my request for judgment of non pros upon the defendants for not Id. Anthony then requested that judgment Id. On February 11, 2013, Wegmans filed preliminary objections to [n]o estate has been opened and neither [appellant] has been or sought to be appointed executor or administrator of the estate of [Decedent]. Under Pennsylvania law such an action can only be brought by the personal -5- J-S32037-14 Id. On the same date, Wegmans filed an On February 19, 2013, Appellants filed an amended complaint and included a January 24, 2013 sworn statement by Mrs. DeFranco. In her statement, Mrs. DeFranco offered the following details regarding her second estate: I went back to the Courthouse, this time with my grandson, Braden DeFranco. I was told again that I need a lawyer but this time they provided [me] with forms to fill out. But they told me I needed something near $90.00 dollars. I did not have that kind of money, nor do I have it now because I live off of strict social security and have absolutely no room to make a budget for this. This occurred in December 2012. Statement, 1/24/13, at 1 (emphasis supplied). On November 1, 2013, the trial court convened a hearing on Id. at 4. Anthony expressed that Mrs. Register of Wills] at my direction because I knew Id. at 10. -6- In J-S32037-14 [W]e found a will, in fact, there was two of them, but we found copied. My mother says that the will itself if for any reason my mother may not be able to represent the estate of my dad, that it would fall upon me and my brother. Now, my mother is believe that situation, Your Honor, I should be a party to this action. Id. at 12that [Mrs. DeFranco] is not up to the task [of being the personal Id. at 13. The trial court questioned whether Anthony would qualify. Specifically, the trial court stated: not sure given your status as a prisoner whether or not fiduciary rules that indicate who can be a [personal representative]. I intend no disrespect, [Anthony], but the stark fact is, you qualifying as an executor. Id. at 14. On November 14, 2013, the trial court issued a memorandum order s and dismissing with prejudice January 15, 2014, the trial court issued its Pa.R.A.P. 1925(a) opinion in adequate re -7- J-S32037-14 Appellants present the following issues for our review: I. Whether the lower court erred when it ruled on judgment of non pros were [sic] never resolved? II. Whether the lower court erred as a matter of law when it ruled that the statute of limitations had expired prior to Appellants taking affirmative steps to the living will clearly named Appellants as executors over his estate and Appellants took affirmative steps limitations expiring? Initially, we note that in the five paragraphs that Appellants dedicate to their first issue, they fail to cite any case law to support their argument. The failure to develop the argument with relevant jurisprudence affects a See, e.g., Commonwealth v. Genovese, 675 A.2d 331 (Pa. Super. 1996) (portion of appellate brief must be developed with pertinent discussion of point which includes citations to relevant authority). Waiver notwithstanding, the docket reflects that while Appellants praeciped for judgment of non pros on November 30, 20122, the prothonotary did not enter judgment because the case had been 2 -8- J-S32037-14 ot paid the appropriate filing fee for the judgment of non pros nor filed an in forma pauperis include the requisite certification pursuant to Pa.R.C.P. 237.1. See Certified Docket Entries, Case No. 13157assertion, there was no outstanding praecipe of non pros before the trial Feingold v. Hendrzak, et al., 15 A.3d 937, 941 (Pa. Super. 2011). We are also mindful that: Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases where it is clear and free of doubt that the pleader will be unable to prove facts legally sufficient to establish the right of relief. If any doubts exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections. Id. citing Haun v Community Health Systems, Inc., 14 A.3d 120, 123 (Pa. Super. 2011). s, the trial court reasoned: Brief at 5. However, the certified docket only reflects the November 30, 2012 filing. -9- J-S32037-14 Anthony asserts that [Appellants] do have standing in this case under an equitable exception. Anthony claims that [Appellants] made attempts to obtain letters testamentary, and would have obtained them but for the lack of help at the Office of the Register of Wills. However, it is clear that [Appellants] did not apply for letters testamentary within the statute of limitations. Under Pennsylvania law, a survival action must be brought by the personal representative of the decedent's estate. 20 executor or administrator of the estate. Pa. R. Civ. P. 2201. An action brought by an estate without a personal representative is void. Prevish v. Northwest Medical Ctr., 692 A.2d 192, 201 (Pa. Super. 1997). The Pennsylvania Courts have considered whether the appointment of a personal representative after the expiration of the statute of limitations may relate back to the initial filing. The Courts have allowed relation back only where the plaintiffs took affirmative steps to secure their appointment as the personal representatives of the estates prior to the expiration of the statute of limitations. See McGuire v. Erie Lackawanna. Ry. Co., 385 A.2d 466 (Pa. Super. 1978); D'Orazio v. Locust Lake Village, Inc., 406 A.2d 550 (Pa. Super. 1979); Gasbarini's Estate v. Med. Ctr. of Beaver County, Inc., 409 A.2d 343 (Pa. 1979). without merit. Because [Appellants] failed to apply for letters testamentary within the statute of limitations period, there can be no relation back to the initial filing. Accordingly, [Appellants] have no standing to bring this suit, this action is void, and the Amended Complaint must be dismissed. Memorandum Order, 11/14/13, at 1-2 (footnote omitted). ber 19, 2012 writ of summons, which listed only Decedent as plaintiff, was a legal nullity. - 10 - We J-S32037-14 In re Sauers, 32 A.3d 1241, 1248-1249 (Pa. 2011) (citation omitted); see also Philadelphia Facilities Management Corporation v. Biester, axiom of our legal system that, in order to maintain a suit, a would-be applicable statute of limitations is two years. The incident with the green beans allegedly occurred on October 1, 2010. Therefore, the statute of 11/14/13, at 2, n.3. The record reflects that prior to October 1, 2012, Appellants applied had not for letters of administration or letters testamentary. Indeed, as discussed above, Mrs. DeFranco indicated that as of December 2012, there had been no filing requesting the letters of 1/24/13, at 1. Mrs. DeFranco confirmed her statement at the hearing on apply for letters testamentary within the statute of limitations period, there can be no relation back to the initial filing. Accordingly, [Appellants] have no standing to bring this suit, this action is void, and the Amended - 11 - J-S32037-14 citing McGuire v. Erie Lackawanna. Ry. Co., 385 A.2d 466 (Pa. Super. 1978); D'Orazio v. Locust Lake Village, Inc., 406 A.2d 550 (Pa. Super. 1979); Gasbarini's Estate v. Med. Ctr. of Beaver County, Inc., 409 A.2d 343 (Pa. 1979). Wills to ap attorney and $90.00 dollars to accomplish this. Being indigent, a senior citizen and acting pro se, she did not have money for a lawyer, nor did she state Id. at 1-2. second unsuccessful attempt was made to secure We disagree, and the letters of administration prior to the expiration of the statute of limitations. Id. at 2. While Appellants accuse the Register of Wills of thwarting their efforts proposition that the Register of Wills had a duty to provide them with legal advice about how to open the estate, how to complete the requisite documentation, or how to solicit in forma pauperis status. Notably, Anthony - 12 - J-S32037-14 stated at the November 1, 2013 hearing that he knew that the letters of administration were a prerequisite to filing a suit prior to sending Mrs. DeFranco to the Register of Wills. N.T., 11/1/13, at 10. Indeed, the estate importance of this action and that time was of the essence. Appellants, pursuing this action pro se, had an obligation to raise prosecute this action. See Van v. Com., Unemployment Compensation Bd. of Review, 494 A.2d 1081, 1086 (Pa. 1985) (internal citations omitted) to some reasonable extent, assume the risk that his lack of expertise and Accordingly, we find that Appel court properly declined to apply the doctrine of relation back because Appellants failed to apply for the letters of administration or letters testamentary prior to the expiration of the statute of limitations on October 1, 2012. Order affirmed. Judge Donohue concurs in the result. - 13 - J-S32037-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/18/2014 - 14 -

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