Grimm, R. v. Grimm, A.
149 A.3d 77
| Pa. Super. Ct. | 2016Background
- In 2005–2006 Robert E. Grimm II (Grandson) alleges his mentally impaired grandfather (Grandfather) battered him; Grandson sued Grandfather, Grandfather’s then-girlfriend/wife (Grandmother), and Grandfather’s attorney (Roskovensky) in 2007.
- Proceedings were largely dormant until Grandson reactivated the case and filed amended complaints in 2011; preliminary objections by Grandmother and Roskovensky were sustained and those claims were dismissed in October 2011 (order not then final).
- Grandfather died around May 16, 2013; no notice of death or substitution of a personal representative was ever filed pursuant to Pa.R.C.P. 2355/2352.
- The trial court later entered a judgment of non pros against Grandson as to Grandfather on May 11, 2015; Grandson appealed.
- The Superior Court sua sponte examined whether the trial court had subject matter jurisdiction to enter the non pros judgment given the decedent defendant and vacated that judgment because no personal representative had been substituted; it affirmed dismissal of claims against Grandmother and Roskovensky on their preliminary objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether death of defendant without substitution deprives trial court of subject matter jurisdiction and prevents entry of judgment of non pros | Grandson: failure by Grandfather’s counsel to file notice of death or substitute PR does not strip court of jurisdiction; non pros was improper | Implicit (through procedure): defense proceeded and sought judgment of non pros; argued delay justified non pros | Held: Death of a party divests trial court of subject matter jurisdiction over claims by/against the deceased until a personal representative is substituted; judgment of non pros vacated and matter remanded for substitution or dismissal |
| Whether delay caused by failure to substitute caused actual prejudice justifying non pros | Grandson: court erred to grant non pros; no prejudice shown | Trial court: procedural delay warranted non pros | Held: Court did not reach merits because jurisdictional defect rendered the non pros void; concerns noted about short interval between scheduling and motion for non pros |
| Whether plaintiff stated a legal-malpractice claim against attorney (privity) | Grandson: attorney’s conduct (representation during competency proceedings, alleged interference) supports malpractice claim | Roskovensky: malpractice requires privity except narrow exceptions | Held: Dismissed — malpractice claim barred by Guy v. Liederbach privity rule |
| Whether plaintiff pleaded concerted-tort liability (Restatement §876) against Roskovensky and Grandmother | Grandson: both encouraged/assisted Grandfather, knew of violent propensities, foreseeability of assault supports §876 liability | Defendants: allegations do not plead knowledge that the specific battery would occur or that battery was foreseeable | Held: Dismissed — complaint fails to plead that defendants knew the specific tort would occur or that the battery was a reasonably foreseeable consequence; preliminary objections properly sustained |
Key Cases Cited
- Goff v. Armbrecht Motor Truck Sales, Inc., 426 A.2d 628 (Pa. Super. 1980) (court may take judicial notice)
- Lange v. Burd, 800 A.2d 336 (Pa. Super. 2002) (a dead person cannot be a party; proceedings against deceased are void)
- Guy v. Liederbach, 459 A.2d 744 (Pa. 1983) (legal malpractice generally requires attorney-client privity)
- Skipworth by Williams v. Lead Indus. Ass’n, Inc., 690 A.2d 169 (Pa. 1997) (Restatement §876 adopted for aiding/encouraging torts)
- Duke v. Feldman, 226 A.2d 345 (Md. 1967) (secondary actor not liable where primary actor’s violent act was not shown to be foreseeable)
- Thompson v. Peck, 181 A. 597 (Pa. 1935) (suits against a deceased individual are void)
- Valentin v. Cartegena, 544 A.2d 1028 (Pa. Super. 1988) (actions against deceased are null)