OPINION BY FITZGERALD, J.:
Appellant, Keith McClean, appeals from the order entered in the Philadelphia County Court of Common Pleas denying his motion for leave to amend his negligence complaint to substitute the defendant's estate, where the defendant had died prior to commencement of the suit and the statute of limitations had run. We affirm, and hold that 20 Pa.C.S. § 3383, which extends the filing period when a defendant is deceased, applies to the initial filing of a complaint, not a motion to amend complaint.
On April 6, 2010, Appellant allegedly slipped and fell on the sidewalk in front of the property at 2028 Spruce Street in Philadelphia. The record owner of the property was Isaac Djerassi ("Defendant"). Unbeknownst to Appellant, Defendant subsequently died on November 11, 2011. Thereafter, on March 29, 2012, Appellant filed the underlying negligence suit against Defendant.
We recount the ensuing tangled, yet relatively short, procedural history in detail. On April 9, 2012, Appellant attempted service of the complaint on Defendant but failed. An affidavit of non-service was filed on April 19th;
Affidavit of Non-Service (emphasis in original).
While neither the record nor Appellant's brief indicate when Appellant learned that Defendant had died, he filed, on December 11, 2012, a motion for leave to amend complaint, to substitute Defendant's estate as the defendant. On January 2, 2013, the co-executors of Defendant's estate, Ady Lynn Djerassi and Ram Isaac Djerassi (collectively, "the Estate"), filed a motion to intervene. On January 9th, the Honorable
On January 21, 2013, Appellant filed an amended complaint, substituting the Estate as the defendant, and filed an answer opposing the Estate's motion to intervene.
This case was then transferred to the Honorable Idee C. Fox. On February 6, 2012, Judge Fox struck Appellant's amended complaint and granted the Estate's motion to intervene. On February 14th, Judge Fox denied Appellant's motion to amend, which had been rendered unresolved by Judge Tucker's order merely vacating his prior order granting amendment.
Meanwhile, the Estate's preliminary objections were assigned to the Honorable Ellen Ceisler. On February 21, 2013, she entered the underlying order sustaining the Estate's preliminary objections and dismissing Appellant's amended complaint
Preliminarily, we consider both trial court opinions' statements concerning the propriety of this appeal. Both Judge Ceisler and Judge Fox reason that because the February 6, 2013 order struck Appellant's amended complaint, the Estate's preliminary objections thereto were moot, and thus the underlying February 21st order sustaining the preliminary objections is likewise moot or void. Trial Ct. Op., 4/15/13, at 4; Trial Ct. Op., 5/13/13, at 2 n. 1. Judge Ceisler further suggests that this appeal, accordingly, is void. Trial Ct. Op., 4/15/13, at 4.
We agree that the February 6, 2013 order striking Appellant's amended complaint rendered the Estate's previously-filed preliminary objections thereto moot. Nevertheless, Appellant's notice of appeal also stated he was appealing from the court's February 14, 2013 order denying his motion to amend. Thus, we construe this appeal as taken from that order.
Our Judicial Code provides that an action to recover damages for injuries caused by another's negligence must be commenced within two years. 42 Pa.C.S. § 5524(2). Section 3383 of our Probate, Estates and Fiduciaries Code, however, provides in part: "The death of a person shall not stop the running of the statute of limitations applicable to any claim against him, but a claim which otherwise would be barred within one year after the death of the decedent shall not be barred until the expiration of one year after his death." 20 Pa.C.S. § 3383.
This Court has stated:
Lange v. Burd, 800 A.2d 336, 339 (Pa.Super.2002) (citations omitted).
Both trial court opinions relied on the 1935 Pennsylvania Supreme Court decision in Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). In that case, the plaintiff filed a negligence suit and later learned the defendant had died prior to commencement of suit. Id. at 597. The trial court granted the plaintiff leave to substitute the executors of the defendant's estate as the defendant. Id. Our Supreme Court reversed, reasoning:
Id. at 598 (citations omitted) (emphases added). Thompson has been consistently followed. See e.g., Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620, 621-22 (1970); Lange, 800 A.2d at 341; Montanya v. McGonegal, 757 A.2d 947, 950 (Pa.Super.2000); Valentin v. Cartegena, 375 Pa.Super. 493, 544 A.2d 1028, 1029 (1988); Longo v. Estep, 289 Pa.Super. 19, 432 A.2d 1029, 1030 (1981). "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." Montanya, 757 A.2d at 950.
In the instant matter, we hold that Appellant's original complaint against Defendant was "void and of no effect," as Defendant was deceased at the time of filing. See Thompson, 181 A. at 598; Valentin, 544 A.2d at 1029. Appellant's insistence that he was entitled to amend the complaint in order to substitute the Estate as defendant is mistaken; Thompson clearly states a complaint against a deceased defendant cannot be cured by amendment. See Thompson, 181 A. at 598. Appellant's only recourse was to file a new complaint against the Estate. See Montanya, 757 A.2d at 950.
At this juncture we disagree with Appellant's premise that the statute of limitations on his claim ran on the usual two-year deadline of April 6, 2012. See 42 Pa.C.S. § 5524(2). Defendant died within one year prior to that date, on November 11, 2011. Thus, we agree with the trial court that pursuant to section 3383 of our Probate Code, the statute of limitations was tolled for another year after Defendant's death, or November 13, 2012.
Moreover, we would reject Appellant's bald assertion that he "used all reasonable diligence to properly inform himself of the facts and circumstances upon which his right of recovery is based." See Appellant's
Furthermore, we would find no merit to his claim that the Estate's representation to the public "that [Defendant] owned the property even after his death [was] clear ... evidence of ... unintentional concealment or fraud." See id. The only allegation sounding of an improper "representation" is Appellant's implicit reference that the Estate failed to transfer the deed to the property from Defendant to itself or another person. See Appellant's Brief at 12. As stated above, "mere silence in the absence of a duty to speak cannot suffice to prove fraudulent concealment." Lange, 800 A.2d at 339. See also Montanya, 757 A.2d at 951 (rejecting plaintiff's argument that widow's failure to inform that husband/defendant had died amounted to active concealment of fact that he was dead, and holding mere silence or nondisclosure was insufficient to show affirmative, independent act of concealment upon which plaintiffs justifiably relied).
For the foregoing reasons, we affirm the order of the trial court denying Appellant's motion to amend his complaint.
Order affirmed.
Additionally, as we discuss infra, we hold Appellant's original complaint was a nullity. Accordingly, the February 14, 2013 order denying his motion to amend complaint is an appealable, final order, as there were no outstanding claims. See Pa.R.A.P. 341(b)(1) (defining "final order" as any order that disposes of all claims and of all parties).