NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2143-20
DAMARIS CHANDLER,
as administrator ad prosequendum
of the estate of JOSEPH E.
CHANDLER, JR., deceased,
Plaintiff-Respondent,
v.
TODD W. KASPER,
Defendant-Appellant,
and
THOMAS C. KASPER,
Defendant,
and
KAZZ, INC., d/b/a KASPER'S
CORNER and KASPER
AUTOMOTIVE,
Defendants-Respondents.
_____________________________
Argued September 13, 2021 – Decided October 7, 2021
Before Judges Sabatino and Rothstadt.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Camden County,
Docket No. L-4710-18.
Neal A. Thakkar argued the cause for appellant
(Sweeney & Sheehan, PC, attorneys; Frank Gattuso and
Jacqueline M. DiColo, on the briefs).
Robert Douglas Kuttner argued the cause for
respondent Damaris Chandler.
Mark R. Sander argued the cause for respondent Kazz,
Inc. (Thomas, Thomas & Hafer, LLP, attorneys; Mark
R. Sander, of counsel and on the brief).
PER CURIAM
In this wrongful death, N.J.S.A. 2A:31-1 to -6, and Survivor's Act,
N.J.S.A. 2A:15-3, action, we granted defendants Todd W. Kasper, Kazz, Inc.
d/b/a Kasper's Corner, and Kasper Automotive, leave to appeal from two
January 22, 2021 orders entered by the Law Division, denying defendants'
motion for partial summary judgment, and permitting plaintiff to amend her
previously filed complaint to correct her standing by designating herself both as
Administrator Ad Prosequendum and the General Administrator of her deceased
father's estate. According to defendants' arguments before the motion judge and
now on appeal, plaintiff could not have standing to bring the Survivor's Act
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2
action because no estate existed at the time she filed her complaint. And, by the
time letters of administration were issued to plaintiff and she sought to amend
her complaint, the statute of limitations for the Survivor's Act action ran years
before. The motion judge acknowledged the deficiency in plaintiff's initial
standing but still denied defendants' motion to dismiss as a matter of equity. We
reverse that determination and remand for entry of orders dismissing plaintiff's
Survivor's Act action for lack of standing because plaintiff's original complaint
was a nullity and any amendment sought after the statute of limitations ran could
not relate back to that complaint.
The undisputed facts giving rise to the complaint in this action are taken
from the motion record and summarized as follows. The decedent, Joseph E.
Chandler, was struck by an automobile while crossing a street on December 21,
2016. The vehicle that struck the decedent was driven by defendant Todd W.
Kasper and owned by defendant Thomas C. Kasper. As a result of being struck
by that vehicle, the decedent suffered significant injuries and passed away six
days later.
Just prior to the statute of limitations running as to the decedent's and his
heirs' claims, on December 18, 2018, the decedent's daughter, plaintiff Damaris
Chandler, filed a two-count complaint as Administrator Ad Prosequendum of
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3
her father's estate. The complaint alleged that the decedent died on December
27, 2016, intestate and that plaintiff had been appointed as Administrator Ad
Prosequendum prior to the filing of the complaint. The first count asserted a
claim under the Survivor's Act for the personal injuries and pain and suffering
the decedent experienced prior to his death. The second count asserted a
wrongful death action, which claimed that the decedent's daughters, plaintiff and
India Ruhlman, his son Kerri Chandler, and his other "survivors and next of kin"
were entitled to damages. In response, defendants filed answers to the
complaint. Defendants Todd and Thomas Kasper's answer asserted as a separate
defense that plaintiff's claims were statutorily barred by both the wrongful death
statute and by the Survivor's Act. Thereafter the parties engaged in discovery.
At no time prior to the filing of the subject summary judgment motions did
defendants otherwise assert that plaintiff lacked standing to bring the Survivor's
Act action.
Thereafter, in November 2020, defendants filed a motion for summary
judgment seeking dismissal of the Survivor's Act action because plaintiff lacked
standing to bring that claim as letters of general administration had never been
issued to her. Plaintiff filed opposition to the motion and a cross-motion to file
A-2143-20
4
a second amendment complaint to reflect that on December 8, 2020, plaintiff
obtained letters of general administration.
In a certification filed in support of her cross-motion and in opposition to
defendants' motion, plaintiff explained that there was a delay in her being able
to seek appointment as both Administrator Ad Prosequendum and as General
Administrator of her father's estate due to disagreements between her and her
siblings. Moreover, she understood from discussions with representatives of the
county surrogate's office that because there were no assets in the estate, it was
only necessary for her to be appointed as Administrator Ad Prosequendum to
file the lawsuit and later be appointed as General Administrator to distribute any
recovery. According to plaintiff, only when the estate had assets would she need
to be appointed as general administrator, which she began to pursue only when
defendants "made a small offer in mediation" to settle this case in August 2020.
However, it took additional time to persuade her siblings to agree to her
appointment.
After further submissions, the motion judge considered the parties' oral
arguments on January 22, 2021. Afterward, the motion judge denied defendants'
motion and granted plaintiff's cross-motion, placing his reasons on the record
that same day. In his oral decision, the motion judge discussed the case law
A-2143-20
5
relied on by the parties and raised by the judge, before concluding that plaintiff
acted diligently and "provided [defendants] timely notice of the [Survivor's Act]
claim by the initial complaint and . . . perhaps there's a defect in the standing
of . . . plaintiff, but [she] was seeking to proceed diligently. [And,] New Jersey
Law holds that it would be inequitable to deny [a] party their day in court
because of ignorance."
The judge also determined that "[a] deceased party['s] claim[] can only
proceed through either [A]dministration [A]d [Proseqeundum] or through an
estate being raised." He stated that defendants' argument as to standing was at
best a "technical argument" and that "[s]tatute of limitations defenses are not
permitted where mechanical application would inflict an obvious and
unnecessary harm on . . . the party who holds the claim without advancing the
legitimate purpose." And, according to the judge "[t]o deny a relation back . . .
serves no legitimate purpose." The judge also relied on the fact that the parties
participated in an arbitration and in discovery for years without defendants
raising any issues as to standing. However, the judge found that "because
standing's a threshold issue [that is] very similar to jurisdiction, it cannot be
waived." Nevertheless, a defect in standing did not "mandate [] . . . the sanction
of dismissal."
A-2143-20
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The judge also found support in the fact that plaintiff had difficulty in
pursuing the issuance of letters of general administration because of
disagreements between her and her siblings. He found that the siblings only
agreed to renounce their rights to being named Administrator Ad Prosequendum
immediately before the filing of the complaint, but "they wouldn't permit full
representation of the estate by [plaintiff.]" Moreover, plaintiff relied on
information she received from the surrogate's office that seemed to indicate that
she could initially pursue the action as Administrator Ad Prosequendum and
later could seek letters of administration that would allow for distribution of any
funds that may be recovered in the action. It was not until December of 2020
that plaintiff's siblings renounced and allowed her to proceed to seek letters of
administration. Therefore, the judge concluded that he should "permit the cure
of the standing issue" by allowing the amendment of the complaint to relate back
to remedy any issue as to standing. This appeal followed.
On appeal, defendants challenged the judge's legal conclusion that despite
the running of the statute of limitations plaintiff should be allowed to amend the
complaint to relate back to its initial filing. "Because the question presented,
whether decedent's estate could avoid the running of the statute of limitations
by having its amended complaint relate back to the complaint filed in [plaintiff's]
A-2143-20
7
name [as Administrator Ad Prosequendum years after the running of the statute
of limitations] is solely a question of law, our review is de novo." Repko v. Our
Lady of Lourdes Med. Ctr. Inc., 464 N.J. Super. 570, 574 (App. Div. 2020).
In Repko, the plaintiff's attorney had filed a complaint in the name of his
deceased client without knowing she was dead. When he learned of her passing,
he sought to amend the complaint to substitute the client's estate and to add a
claim under the Survivor's Act, but did so three years after the cause of action
arose and after the statute of limitations had run. In our opinion, we reversed
the denial of defendant's motion to dismiss the complaint as barred by the statute
of limitations and remanded for the entry of an order dismissing the complaint
with prejudice. Id. at 578. There, we observed that the original complaint was
a "nullity" because a deceased person cannot be a plaintiff. Id. at 575. We
concluded there was nothing for an amendment of the complaint to relate back
to, which warranted dismissal of the Survivor's Act claim. Id. at 573.
In the present action, the motion judge and plaintiff on appeal rejected
defendants' argument that our holding in Repko was applicable to this case. We
disagree.
At the outset, we note the important distinction between a wrongful death
action and a Survivor's Act action; the former belonging to the individual
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8
survivors of the decedent and the later belonging only to the decedent's estate.
"[T]he Survivor's Act preserves to the decedent's estate any personal cause of
action that decedent would have had if he or she would have survived." Smith
v. Whitaker, 160 N.J. 221, 233 (1999). The Survivor's Act permits only an
"executor, suing on behalf of [an] estate, to recover the damages [the] testator
would have had if [the testator] was living." Repko, 464 N.J. Super. at 577
(quoting Smith, 160 N.J. at 233). On the other hand, a wrongful death action
must "be brought in the name of an [A]dministrator [A]d [P]rosequendum of the
decedent for whose death damages are sought," or by an executor where the
decedent's will has been probated, N.J.S.A. 2A:31-2, and any recovery belongs
to the decedent's heirs. See N.J.S.A. 2A:31-4.
As explained by Judge Milton A. Feller many years ago in Kern v. Kogan,
93 N.J. Super. 459 (Law Div. 1967), there is a significant difference between
the two actions:
The death statute gives to the personal representatives
a cause of action beyond that which the deceased would
have had if he had survived, and based upon a different
principle, a new right of action. The recovery goes, not
to the estate of the deceased person, but to certain
designated persons or next of kin. In the recovery the
executor or administrator as such has no interest; the
fund is not liable to the debts of the deceased, nor is it
subject to disposition by will, for the reason that the
primary concern of the [A]ct . . . is to provide for those
A-2143-20
9
who may have been the dependents of the
deceased. . . .
[The Survivor's Act] contemplates compensation to the
deceased person's estate. It is in the interval between
injury and death only that loss can accrue to the estate,
and in that alone is the personal representative
interested. . . . The damages for personal injury and the
expense of care, nursing, medical attendance, hospital
and other proper charges incident to an injury as well
as the loss of earnings in the life of the deceased are the
loss to his estate and not to [his widow or next of kin].
[Id. at 471-72 (citation omitted).]
"Under these acts, the [A]dministrator Ad [P]rosequendum is the proper
party to bring a lawful death action and a [G]eneral [A]dministrator is the proper
party to institute a survival action." Id. at 473.
Notably the Survivor's Act includes a provision "to toll any statute of
limitations on a claim belonging to a decedent for up to six months following
death for the 'salutary purpose of providing executors and administrators with a
limited period of time after death to evaluate potential claims available to the
estate.'" Repko, 464 N.J. Super. at 577 (quoting Warren v. Muenzen, 448 N.J.
Super. 52, 67-68 (App. Div. 2016) (citing N.J.S.A. 2A:14-23.1)).
Applying these well settled principals to the facts in the matter before us,
we must reverse the motion judge's determination that the complaint in this
matter could have been amended to correct what was obviously plaintiff's lack
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10
of standing to bring the Survivor's Action in her capacity as Administrator Ad
Prosequendum. Her reasons for not pursuing letters of general administration
are of no moment. Like the complaint filed on behalf of the deceased plaintiff
in Repko, here, the filing of the complaint prior to the establishment of an estate
was a "nullity." Id. at 573. Any delay caused by a dispute among the heirs or
siblings could have been avoided with the filing of an appropriate probate action
long before the statute of limitations expired for the filing of the Survivor's Act
claim, which as noted provides for a tolling of that time period to allow for such
arrangements to be made or issues to be addressed.
As we noted in Repko, the "issue . . . of standing [is] succinctly
defined . . . as 'the legal right to set judicial machinery in motion,'" id. at 574
(quoting Eder Bros. v. Wine Merchs. of Conn., Inc., 880 A.2d 138, 143 (Conn.
2005)). Here, plaintiff did not have that legal right as to the Survivor's Act
action at the time the complaint was filed and did not acquire it until after the
statute of limitations had run on the estate's claim under that act. Regardless of
the fact that defendants had notice of the claim through service of the original
complaint, that pleading remained a nullity and could not have been asserted
once the statute of limitations had run. Although we appreciate the motion
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11
judge's endeavor to attain an equitable result, the governing law simply does not
authorize it.
Reversed and remanded for entry of an order dismissing the Survivor's
Act action count of the complaint.
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12