McClean v. Djerassi
84 A.3d 1067
| Pa. Super. Ct. | 2013Background
- Appellant Keith McClean appeals a denial of leave to amend to substitute a deceased defendant’s estate.
- Defendant Isaac Djerassi died on November 11, 2011; the action was filed March 29, 2012 against the decedent.
- McClean attempted service on April 9, 2012 but could not serve because the defendant was deceased.
- On December 11, 2012, McClean moved to amend to substitute the Estate as defendant; co-executors intervened in January 2013 and amendment was litigated.
- The trial court and appellate courts held the original complaint was void for naming a dead party, and that amendment could not cure this; 3383 tolling applied to the initial filing, not to an amendment, and no new complaint against the Estate was filed.
- The court ultimately affirmed denial of leave to amend, and held the statute of limitations was not tolled for an improper amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3383 tolling applies to the initial filing when a defendant dies. | McClean argues tolling preserved the claim. | Estate argues Thompson forecloses amendment as a cure. | §3383 tolling applies to initial filing, not amendment. |
| Whether the original complaint against a deceased defendant is void and cannot be cured by amendment. | Amendment could substitute the Estate to cure the defect. | Thompson v. Peck voids a complaint against a dead defendant; amendment cannot fix. | Original complaint void; amendment cannot cure; must file a new action. |
| Whether tolling would apply if a new complaint were filed against the Estate. | Tolling could apply to a new filing against the Estate. | No new complaint was filed, so tolling does not apply to an amendment. | Tolling not applicable because no new complaint against the Estate was filed. |
| Whether the Estate’s motion to intervene affected the decision on leave to amend. | Intervention status supports amendment. | Intervention did not salvage an improper original complaint. | Not favorable to McClean; amendment denied. |
Key Cases Cited
- Thompson v. Peck, 320 Pa. 27 (Pa. 1935) (dead defendant cannot be party; amendment cannot cure void pleading)
- Ehrhardt v. Costello, 437 Pa. 556 (Pa. 1970) (policy on limitations and concealment principles)
- Lange v. Burd, 800 A.2d 336 (Pa. Super. 2002) (concealment tolling requires affirmative act; mere silence insufficient)
- Montanya v. McGonegal, 757 A.2d 947 (Pa. Super. 2000) (new action against decedent’s personal representative required)
- Valentin v. Cartegena, 544 A.2d 1028 (Pa. Super. 1988) (mere silence not sufficient concealment)
- Longo v. Estep, 432 A.2d 1029 (Pa. Super. 1981) (limitations and amendment principles in wrongful death/estate context)