J-A20039-22
2023 PA SUPER 45
DENIA EDWARDS, PERSONAL : IN THE SUPERIOR COURT OF
REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA
DOUGLAS A. EDWARDS :
:
:
v. :
:
:
NORFOLK SOUTHERN RAILWAY : No. 826 EDA 2021
COMPANY :
:
Appellant :
Appeal from the Order Entered November 2, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181003685
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED MARCH 21, 2023
Under the relation back doctrine, our courts, in certain situations, have
validated the acts of a personal representative of an estate that predate their
official appointment. In this interlocutory appeal by permission, we consider
whether the doctrine applies when a plaintiff timely files an action on behalf
of an estate but does not apply to be appointed the personal representative
until after the statute of limitations has run.
Finding that the doctrine applies in such situations, the Court of
Common Pleas of Philadelphia County (trial court) denied the motion for
summary judgment filed by Norfolk Southern Railway Company (Norfolk
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* Retired Senior Judge assigned to the Superior Court.
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Southern) to dismiss the action filed by Denia Edwards (Edwards), personal
representative of the estate of Douglas A. Edwards, her late husband’s estate.
Norfolk Southern appeals from that order and argues that the relation back
doctrine is inapplicable here because Edwards did not apply to be the personal
representative of the estate until two months after the expiration of the
statute of limitations. After review, we affirm and hold that her appointment
as personal representative of her late husband’s estate relates back to her
filing the complaint.
I.
On October 27, 2015, Douglas A. Edwards died. On October 26, 2018,
with one day left before the statute of limitations expired, Edwards filed an
action under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60,
alleging that her late husband’s renal cell cancer was caused by his two-
decade-plus employment with Norfolk Southern.1 The complaint named the
plaintiff as “Denia Edwards, personal representative for the estate of Douglas
A. Edwards.” At the time, however, Edwards had neither applied for nor been
appointed the personal representative of her late husband’s estate, even
though she was named the executor in his last will and testament. On
December 27, 2018, two months after the statute of limitations for a FELA
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1The statute of limitations for bringing a FELA action is three years. See 45
U.S.C. § 56 (“No action shall be maintained under this chapter unless
commenced within three years from the day the cause of action accrued.”).
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action had run, Edwards finally applied to be the personal representative of
her late husband’s estate in Mercer County, West Virginia, which is where she
and her late husband lived.2
Norfolk Southern filed preliminary objections for lack of personal
jurisdiction, which were denied after Edwards filed an amended complaint.3
Norfolk Southern then filed an answer and new matter raising the statute of
limitations as a defense, following which it moved for summary judgment on
that basis asserting that the action was time-barred because Edwards did not
apply to be the personal representative until after the statute of limitations
had expired. Edwards countered that her appointment as personal
representative related back to her filing the complaint. The trial court agreed
and denied summary judgment. After the trial court refused to certify its
order as an appealable interlocutory order, Norfolk Southern petitioned this
Court for permission to appeal under Pa.R.A.P. 1311(b), which we granted.
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2Under West Virginia law, “[a] person appointed to be the executor of a will
shall not have the powers of executor until he or she qualifies by taking an
oath and giving bond, unless not required to post bond by § 44-1-8 of this
code… .” W. Va. Code § 44-1-1.
3 Norfolk Southern properly did not raise their statute of limitations defense
in their preliminary objections. See Sayers v. Heritage Valley Medical
Group, Inc., 247 A.3d 1155, 1159 (Pa. Super. 2021) (“Generally, a statute
of limitations defense is properly raised in new matter and not in preliminary
objections.”); Pa.R.Civ.P. 1030(a) (“[A]ll affirmative defenses including but
not limited to the defenses of ... statute of limitations ... shall be pleaded in a
responsive pleading under the heading ‘New Matter’ ”).
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Norfolk Southern then filed this appeal to argue that summary judgment
should have been granted because Edwards waited until after the statute of
limitations to apply to be appointed the personal representative of her late
husband’s estate.
II.
We begin by reviewing the relation back doctrine and the key cases
addressing the doctrine. Generally, “all actions that survive a decedent must
be brought by or against the personal representative” and “a decedent's estate
cannot be a party to litigation unless a personal representative exists.”
Salvadia v. Askbrook, 923 A.2d 436, 440 (Pa. Super. 2007) (citation
omitted). The relation back doctrine, however, will sometimes be applied as
an exception to the general rule. As we have explained:
Simply stated, the doctrine of relation back as applied to cases
where an estate is a party means that the courts under certain
circumstances will validate the acts of the personal representative
of the estate which preceded the date of his official appointment.
Thus, where a plaintiff, acting as the personal representative of
an estate, initiates an action before the statute of limitations has
run, but also before his or her appointment as personal
representative has been finalized, the doctrine of relation back
may be applied in appropriate circumstances to validate the filing
of the action, even though the plaintiff’s appointment is not
finalized until after the limitations period has expired.
Prevish v. Northwest Med. Ctr. Oil City Campus, 692 A.2d 192, 201 (Pa.
Super. 1997) (en banc) (internal quotations and citations omitted).
In the late 1970s, the doctrine was applied in three cases in which the
plaintiffs applied to be the personal representative but were not formally
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appointed until after the statute had run. The first case was McGuire v. Erie
Lackawanna Ry. Co., 385 A.2d 466 (Pa. Super. 1978). In McGuire, the
plaintiff petitioned to be the administrator of his daughter’s estate after she
was hit and killed by a train. While he paid the filing fee, the letters of
administration were not issued because he did not post the bond. Before the
statute of limitations ran, he filed a survival action alleging that he was the
administrator of his daughter's estate. Three weeks later, he finally posted
the bond and was issued the letters of administration. The defendant moved
for summary judgment because the statute of limitations had run before the
letters were issued. The trial court denied summary judgment and certified
its order as involving a controlling question of law.
On appeal, we held that the father’s appointment as administrator
related back to when he filed the action. We began by noting that the relation
back doctrine had generally been limited to actions that benefit an estate. We
found this test too limited, however, because it did not answer whether a
railroad should have to pay an asset to an estate that did not exist at the time
the limitations period expired. Id. at 467-68. As a result, we suggested the
better test was “whether in all circumstances ‘relation back’ will achieve a just
result.” Id. at 468.
To answer what a just result would be in the case, we emphasized that
the purpose of statutes of limitations is to “expedite litigation and thus to
discourage delay and the presentation of stale claims” and “promote finality
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and stability.” Id. (citations omitted). With this in mind, we found that the
plaintiff had done enough within the statutory period to fulfill the purposes of
the statute of limitations.
When the complaint was filed, it represented a timely statement
of every element of the claim, except in one respect: the plaintiff
appellee had not been formally named administrator. That
deficiency, however, was minimal. At the time the complaint was
filed, that is, within the statutory period, [the plaintiff] had applied
for letters of administration. Under the provisions of the
Decedents, Estates & Fiduciaries Code, Act of June 30, 1972, P.L.
508, No. 164, [§] 2, 20 P.S. [§] 3155(b)(3), [the plaintiff] as
decedent’s father had a prior right to be appointed; having applied
to be appointed, he was unlikely not to pursue his application to
completion. Nor had anyone else applied. The only thing that
held up the issuance of letters was appellee’s failure to post a
nominal bond of $1000. While we grant that the bond represents
something of a contingency, we nonetheless find that in the
circumstances, appellee’s appointment as administrator was
substantially assured at the time the complaint was filed, that is,
within the statutory period of limitations.
McGuire, 385 A.2d at 468 (footnote omitted).
We then noted that this reasoning was similar to that used in Beckman
v. Owens, 5 A.2d 626 (Pa. Super. 1939), a case in which we allowed a suit
against an estate even though the executor named in the decedent’s will was
not granted testamentary letters until after the statute ran. In so noting, we
quoted Beckman’s holding that
(A)n executor “derives his authority to act from the will. The
granting of letters testamentary by the register of wills is a pro
forma act, to give effect to the will of the testator.” . . . “(P)arties,
upon whom is a necessity of present action, may proceed on the
presumption that (the executor appointed) will accept, and their
action is valid until he actually renounces, or they have notice that
he will not accept. (”)
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McGuire, 385 A.2d at 468 (quoting Beckman, 5 A.2d at 627) (omission in
original) (internal citation omitted).
We then contrasted its facts with those in an earlier case in which this
Court declined to apply the relation back doctrine. In Lovejoy v. Georgeff,
303 A.2d 501 (Pa. Super. 1973), the plaintiff timely filed a writ of summons
on behalf of his injured son against the father of the deceased driver as
“administrator” of the driver’s estate. The plaintiff applied for the issuance of
letters of administration for the estate but the letters were not issued until
after the statute of limitations had run. We distinguished these facts by noting
that
when the [writ of summons] was filed, the identity of the
administrator was uncertain; either parent [for the deceased
driver] could have renounced the right to letters and the other
accepted, or both could have renounced. At the time the statute
ran, therefore, there could have been no such presumption as in
[Beckman] and as in the present case, that the father would be
administrator. Thus it was quite possible that the [writ of
summons] had identified as a party someone who was not, and
would not become, a party, so that the [writ of summons] might
have been served on the wrong person entirely. This possibility
introduced the sort of instability not present in Beckman or the
present case, and was fatal.
McGuire, 385 A.2d at 469 (footnotes omitted). Thus, unlike Lovejoy, the
McGuire court concluded that the defendant railroad could “proceed on the
presumption that” the plaintiff’s appointment as administrator would be
completed. Id. at 468-69. For that reason, the relationship between the
plaintiff and the defendant “was not affected with the sort of instability that
statutes of limitations seek to preclude.” Id. at 469.
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We reached a similar result a year later in D'Orazio v. Locust Lake
Vill., Inc., 406 A.2d 550 (Pa. Super. 1979). There, the decedent was a child
who drowned in defendants’ lake. Before the statute of limitations ran, the
decedent’s mother filed (1) a petition for letters of administration and (2) a
complaint against the defendant, naming herself administrator of her son’s
estate. The mother assumed that letters had been issued because she had
obtained the bond and paid its premiums for several years. After the statute
of limitations had run, however, she learned that the letters had not been
issued because she did not execute the bond. Upon learning this, she signed
the bond and was issued the letters. The trial court, however, dismissed the
complaint because the letter had not been acquired until after the statute of
limitations had run.
On appeal, we reversed and held that our decision in McGuire
compelled finding the relation back doctrine applied, explaining:
Although [the plaintiff] here was finally granted letters much
longer after the statute’s running than was [the plaintiff in
McGuire], this fact does not alter our disposition. The crucial
factors are that letters had been requested and the action
commenced within the statutory period, and [the plaintiff’s]
appointment as administratrix, under the circumstances of this
case, “was substantially assured at the time the complaint was
filed, ... within the statutory period of limitations.”
D’Orazio, 406 A.2d at 552 (quoting McGuire, 385 A.2d at 468).
Not long after D’Orazio, our Supreme Court addressed a similar
scenario in Estate of Gasbarini v. Medical Ctr. of Beaver Cnty., 409 A.2d
343 (Pa. 1979). In Gasbarini, the decedent died while a patient in the
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defendant hospital and under the care of the defendant physicians. The
decedent’s widow promptly applied for letters of administration but her
counsel failed to post bond. Counsel later filed a writ of summons against the
defendants, naming the decedent’s estate as plaintiff. Counsel again named
the estate as plaintiff when he later filed a complaint asserting wrongful death
and survival actions. Defendants responded by filing preliminary objections
alleging that the estate was not a proper party. When counsel failed to
respond, the complaint was dismissed.
Unbeknownst to the widow, counsel was suspended and later disbarred.
As a result, she hired new counsel and was named administrator of her
husband’s estate after posting the bond. Counsel then petitioned to reinstate
the complaint and amend its caption to add the widow as the estate’s personal
representative, which the trial court granted. On appeal, we reversed and
ordered that the complaint be dismissed. On allowance of appeal, however,
our Supreme Court adopted our reasoning in McGuire in applying the relation
back doctrine in the widow’s favor.
The original complaint, filed by [prior counsel], made clear that
the action was based upon our wrongful death and survival
statutes. Further, as previously mentioned, the complaint made
clear that [decedent’s widow] was bringing this action in her
capacity as administratrix of the decedent’s estate.
***
We believe the instant case is on all fours with McGuire and we
believe its reasoning is persuasive. Instantly, the only deficiency
in [plaintiff’s] complaint was the fact she had not yet been named
administratrix of decedent’s estate. All other requirements,
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however, had been completed within a short time period after
decedent’s death and within the applicable statute of limitations
for either a wrongful death or survivor action. As we believe the
appointment of appellant as administratrix should relate back to
the … date on which the complaint was filed, we find that neither
action is barred by the applicable statute of limitations.
Id. at 346-347.
In Wilkes-Barre Gen. Hospital v. Lesho, 435 A.2d 1340 (Pa. Cmwlth.
1981), our Commonwealth Court considered a scenario where—unlike
McGuire, D'Orazio and Gasbarini—the decedent’s plaintiffs waited until
after the statute of limitations had run to apply to be the personal
representatives of the estate. There, the plaintiffs’ daughter allegedly died of
medical malpractice. Two months later, the plaintiffs petitioned to settle her
estate but did not apply for letters of administration. The plaintiffs then filed
a complaint in the Arbitration Panels for Health Care against the defendants,
identifying themselves in the caption and body as individuals and
administrators of their daughter’s estate. While letters of administration were
eventually granted, the plaintiffs neither applied for nor were granted the
letters until after the statute of limitations had run. The defendants moved
for summary judgment but the arbitrator found that the relation back doctrine
applied.
On appeal, the defendants argued that McGuire, D’Orazio and
Gasbarini supported reversal because the plaintiffs in those cases applied for
letters of administration before the statute of limitations had run, thus giving
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“substantial assurance that the letters would be granted to the person alleging
his or her fiduciary capacity in the pleading.” Lesho, 435 A.2d at 1342.
Nevertheless, the Commonwealth Court held that the reasoning used in
McGuire and reiterated in Gasbarini applied with equal force to the plaintiff
parents in Lesho, explaining:
Absolutely nothing was changed in the [plaintiffs’] complaint by
virtue of letters of administration having been granted to them
after the statute of limitations had run. From the time the original
complaint was filed, the [defendants] were aware that they were
being sued for their alleged negligence resulting in the death of a
named decedent. Every element necessary to establish the two
causes of action against the [defendants] was set forth in the
complaint, including the erroneous fact that the [plaintiffs] had
been appointed administrators of their daughter’s estate.
***
In any event, it is our opinion that by permitting the doctrine to
apply to the circumstances of this case, the acts of the
administrators will have been validated, a just result will have
been achieved, the estate will have been benefited and a remedy
will not have been lost. Neither will the objectives of the statute
of limitations have been disturbed.
Id. at 1343.
Finally, this Court revisited the relation back doctrine in the context of
a survival action in Prevish v. Northwest Med. Ctr. Oil City Campus, 692
A.2d 192, 201 (Pa. Super. 1997) (en banc). There, the plaintiff’s wife
allegedly suffered a stroke and paralysis because of defendants’ medical
malpractice. After she died, the plaintiff filed a writ of summons against the
defendants, with a caption naming the plaintiff as his wife’s estate. In his
subsequent complaint filed after the statute of limitations had run, the plaintiff
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listed himself as the plaintiff and alleged that he had been appointed the
executor of the estate. The defendants filed preliminary objections to strike
the complaint because the plaintiff had not obtained consent or leave to
amend the complaint’s caption to correct of the name of a party. The trial
court agreed and declined to apply the relation back doctrine because (1) the
writ of summons named the estate as plaintiff, and (2) no personal
representative had been designated until after the statute had run.
On appeal, the plaintiff argued that the trial court should have allowed
him to correct the caption to reflect his appointment as executor of his wife’s
estate. To address this contention, the Prevish court reviewed all the above
cases and found them distinguishable.
In McGuire, D'Orazio, and Lesho, a survival action was
commenced by the timely filing of a complaint the caption of which
identified the plaintiff by name as the administrator of the
decedent’s estate. In Gasbarini, a survival action was
commenced by the timely filing of a complaint the caption of which
named the decedent’s estate as the plaintiff, but the body of which
explained that the plaintiff was in fact the administratrix of the
estate. In each case the designation of the plaintiff as
administrator/administratrix was premature, as certain steps
remained to be taken which were not accomplished until after the
statute of limitations had run. In all four cases, however, the
defendants were notified, before the statute of limitations had
run, of the fact that an action had been filed against them by a
named individual who was, at least putatively, the personal
representative of the decedent’s estate. Insofar as the
commencement of the action was concerned, nothing remained to
be done after the limitations period had expired but to formalize
the plaintiff’s previously asserted appointment as personal
representative.
Prevish, 692 A.2d at 204 (emphasis in original).
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With this in mind, the Prevish court went on to find that the relation
back doctrine did not apply to the plaintiff’s actions because
…[t]he writ of summons was the only document filed before the
limitations period expired, and its caption identifies the estate of
the decedent as the plaintiff. Such a writ is, of course, a nullity.
Moreover, the writ does not identify the executor of the estate,
nor does it inform the defendants that there is, even potentially,
an executor (that is, that the decedent died testate). Concerning
the parties’ relationship, these facts evidence “the sort of
instability that statutes of limitation seek to preclude.” McGuire,
supra.
[Plaintiff] has cited no case, and we are aware of none, in which
the relation back doctrine was applied to ratify, post-appointment,
the attempted commencement of an action by a personal
representative whose existence was in no way suggested by the
pleading that he filed. We decline to extend the doctrine to
encompass such a situation. Accordingly, we affirm the trial
court’s order dismissing the complaint.
Id. at 204-05.
III.
On appeal, Norfolk Southern argues that Edwards lacked the capacity to
bring her action on behalf of her late husband’s estate since a FELA action can
be maintained only by either the injured person or, if the person is deceased,
their personal representative. See 45 U.S.C. § 59.4 It emphasizes that
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4 “Any right of action given by this chapter to a person suffering injury shall
survive to his or her personal representative, for the benefit of the surviving
widow or husband and children of such employee, and, if none, then of such
employee’s parents; and, if none, then of the next of kin dependent upon such
employee, but in such cases there shall be only one recovery for the same
injury.” 45 U.S.C. § 59.
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Edwards did not apply to be the personal representative of her late husband’s
estate until after the statute of limitations had run. Because she failed to do
so, Norfolk Southern argues that the complaint was a nullity because Edwards
lacked standing to pursue claims on behalf of the estate at the time when she
filed the complaint.
As for the relation back doctrine, Norfolk Southern asserts that it does
not apply here. It argues that McGuire, D’Orazio and Gasbarini support
reversal because the plaintiffs in those cases applied to be the estates’
personal representatives before the statute of limitations ran. On this point,
Norfolk Southern highlights the D’Orazio court’s statement that the “crucial
factors” in allowing the relation back doctrine in that case were “that letters
[of administration] had been requested and the action commenced within the
statutory period,” thus substantially assuring the plaintiff’s appointment as
the estate’s executor. See D’Orazio, 406 A.2d at 552. Further, Norfolk
Southern contends the presumption that one will be appointed an estate’s
executor attaches only at the time the application is made. See McGuire,
385 A.2d at 468-69.
Turning to Edwards, while conceding that a decedent’s estate cannot be
a party to litigation unless a personal representative exists, she contends that
the relation back doctrine applies here. First, she notes that the plaintiffs in
McGuire, D’Orazio and Gasbarini all died intestate. Here, in contrast,
Edwards was named the executor in her late husband’s last will and testament.
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Next, she notes that in the most “on point” case on this matter—Lesho—the
Commonwealth Court rejected the very same argument that Norfolk Southern
raises here: that McGuire, D’Orazio and Gasbarini stand for the proposition
that the relation back doctrine applies only when the plaintiff applies to be the
personal representative before the statute of limitations has run. Rejecting
this argument, the Lesho court concluded that the reasoning used in McGuire
and Gasbarini supported finding that the relation back doctrine could be
applied even the plaintiff waits until after the statute of limitations had run to
be appointed the personal representative. Edwards further emphasizes that
like the plaintiffs in McGuire, D’Orazio and Gasbarini, she identified herself
in the complaint’s caption as the personal representative of her late husband’s
estate, thus notifying Norfolk Southern before the statute of limitations had
run that an action had been filed against it by a person who was, at least
putatively, the personal representative of the decedent’s estate.
IV.
After review, the trial court did not err in denying summary judgment
and concluding that the relation back doctrine applied here.5
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5 Our standard of review of an order granting or denying summary judgment
is well-settled:
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
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First, just as we did in McGuire, we begin with the purpose of statutes
of limitations to determine whether the relation back doctrine can be applied
under these circumstances. “Generally speaking, statutes of limitations are
rules of law that set time limits for bringing legal claims.” Nicole B. v. Sch.
Dist. Of Phila., 237 A.3d 986, 993-94 (Pa. 2020). “They serve several
purposes: imposing finality on the litigation system; providing defendants
with an end to their potential liability; and avoiding litigation of disputes
involving stale evidence.” Id. at 994. As this Court has long recognized, the
“purpose of any statute of limitations is to expedite litigation and thus
discourage delay and the presentation of stale claims which may greatly
prejudice the defense of such claims.” McCreesh v. City of Philadelphia,
888 A.2d 211, 222 (Pa. 2005) (citation omitted).
In McGuire, D’Orazio, Gasbarini and Lesho, our courts noted two
main reasons why application of the relation back doctrine did not contravene
the purpose of statutes of limitations. First, in each of those cases, the
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clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court’s order
will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Siciliano v. Mueller, 149 A.3d 863, 864 (Pa. Super. 2016). Moreover, the
standard or review for issues involving the interpretation of a statute of
limitations is de novo and the scope of review is plenary. See Erie Ins.
Exchange v. Bristol, 174 A.3d 578, 585 n.13 (2017).
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complaint was timely filed within the statute of limitations and set out every
element of the plaintiffs’ claims. Thus, except for the plaintiffs’ formal
appointment as personal representative, the defendants in those cases were
put on notice before the statute of limitations had run that “an action had been
filed against them by a named individual who was, at least putatively, the
personal representative of the decedent's estate.” Prevish, 692 A.2d at 204.
Thus, at that stage in those cases, the only thing that remained for the plaintiff
to do was to formalize their previously asserted appointment as personal
representative. Id.
The same applies here. Edwards timely filed her FELA action and set
out all the elements of her claims before the statute of limitations had run,
thus putting Norfolk Southern on notice that they were being sued. Critically,
just as the Lesho court recognized, nothing changed concerning those claims
by virtue of Edwards later being formally appointed the personal
representative. See Lesho, 435 A.2d at 1343 (“Absolutely nothing was
changed in the [plaintiffs’] complaint by virtue of letters of administration
having been granted to them after the statute of limitations had run.”).
Second, in each of the four cases, the complaint listed the plaintiff as
the personal representative of the estate in the caption or alleged that the
plaintiff was the administrator of the estate. See McGuire, 385 A.2d at 467;
D’Orazio, 406 A.2d at 551; Gasbarini, 409 A.2d at 345; Lesho, 435 A.2d at
1341. Likewise, in both her original and amended complaints, Edwards listed
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the plaintiff in the caption as “DENIA EDWARDS, Personal Representative for
the Estate of Douglas A. Edwards.” Further, she averred in both complaints
that she was the personal representative of the estate. See Complaint,
10/26/18, ¶ 2; Amended Complaint, 12/17/18, ¶ 2. As a result, while she
had not yet applied to be the personal representative of the estate, the
complaint put Norfolk Southern on notice that Edwards was bringing the action
in her capacity as personal representative of the estate.
On this point, we do not find it fatal to her claims that Edwards waited
until after the statute of limitations had run to apply to be the personal
representative of her late husband’s estate. In McGuire, D’Orazio and
Gasbarini, despite each of the decedents dying intestate, it was “substantially
assured” that each of the plaintiffs would be appointed the personal
representative of the estate. In McGuire, the appointment was held up by
the plaintiff failing to post the bond; in D’Orazio, it was the plaintiff’s failure
to execute the bond; and in Gasbarini, it was plaintiff’s counsel failing to post
bond. In each case, there was no dispute that the plaintiff would be appointed
the estate’s personal representative, as the only thing delaying the
appointment was the oversight of paying or executing the bond for the letters
of administration.
While this case differs from those cases in that the decedent died
testate, there was still no real dispute that Edwards would be appointed the
personal representative of her late husband’s estate since she was named
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executor in her late husband’s last will and testament. Under West Virginia
law, the only thing she needed to do to be appointed the personal
representative was file the application of fiduciaries and take an oath in the
county in which her late husband’s last will and testament had been recorded.
See W. Va. Code § 44-1-1.6 Given that Edwards was (1) named the executor
in her husband’s will, and (2) listed herself as the plaintiff in the timely filed
complaint, Norfolk Southern could “proceed on the presumption” that she
would seek appointment as personal representative of her late husband’s
estate. Thus, just as the McGuire court concluded, we find that “the
relationship between the parties was not affected with the sort of instability
that statutes of limitations seek to preclude.” McGuire, 385 A.2d at 469.
As noted, citing McGuire, Norfolk Southern asserts that the
presumption that Edwards would seek appointment as personal representative
could attach only if she made a timely application. Based on our reading,
however, McGuire states no such thing.
To recap, in McGuire, we held that the defendant railroad could
presume that the plaintiff would be appointed the personal representative of
his daughter’s estate because he had applied for letters of administration and
had a prior right to be appointed under statute. Id. at 468. For support, the
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6Edwards did not need to post bond because she was the sole beneficiary of
her late husband. See W. Va. Code § 44-1-8(b).
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McGuire court likened its reasoning to that in Beckman in which this Court
held that a creditor of the decedent could file suit against the executor
appointed in the decedent’s will prior to the probate of the will and issuance
of letters testamentary. As noted, the McGuire court quoted the Beckman
court’s holding that an executor “derives his authority to act from the will.
The granting of letters testamentary by the register of wills is a pro forma act,
to give effect to the will of the testator.” Id. at 468 (quoting Beckman, 5
A.2d at 627). The McGuire court further quoted Beckman’s holding that the
parties “may proceed on the presumption that (the executor appointed) will
accept, and their action is valid until he actually renounces, or they have notice
that he will not accept.” Thus, as the above quoted sections show, the
McGuire court was equating the plaintiff father in its case with an executor
named in a decedent’s will who is presumed to have accepted the appointment
until that appointment is renounced.
Finally, we address two other arguments raised by Norfolk Southern.
First, as noted, Norfolk Southern highlights that in D’Orazio, we stated that
the “crucial factors” in applying the relation back doctrine in that case were
that the plaintiff requested the letters of administration before the statute of
limitations had run. See D’Orazio, 406 A.2d at 552. In that case, however,
the plaintiff mother did not obtain the letters of administration until about a
year-and-a-half after the statute had run, which was substantially longer than
the delay in McGuire. Thus, read in context, the D’Orazio court’s statement
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that it was “crucial” that the plaintiff request the letters before the statute had
run was meant to answer the concern that the plaintiff mother was not granted
the letters until “much longer after the statute’s running than [the plaintiff in
McGuire.]” Id.
Second, Norfolk Southern asserts that Lesho has no persuasive value
because (1) it is a Commonwealth Court decision,7 and (2) its factually
distinguishable because, unlike the defendants in Lesho, Norfolk Southern
raises its statute of limitations defense at its first opportunity. The second
point is well taken, since the Lesho court observed that none of the
defendants denied that the plaintiffs were administrators of their daughter’s
estate until they were granted leave to file amended answers. See Lesho,
435 A.2d at 1343.
Before that observation, however, the Commonwealth Court made clear
that its decision rested on the plaintiffs timely filing their complaint and putting
the defendants on notice that they were sued by the plaintiffs in their capacity
as the personal representatives of the decedent’s estate.
It is true that in every case cited by [the defendants], where the
[relation back] doctrine has been applied, an application for letters
was made before the statute of limitations expired. Nevertheless,
we feel compelled to apply the doctrine here because our analysis
of the reasoning used in McGuire and reiterated in the
[Gasbarini] demonstrates that it must likewise prevail here.
Absolutely nothing was changed in the [plaintiffs’] complaint by
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7 “Commonwealth Court decisions do not bind this Court, but we may consider
them as persuasive authority.” Cuth v. Cuth, 263 A.3d 1186, 1191 n.5 (Pa.
Super. 2021) (citation omitted).
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virtue of letters of administration having been granted to them
after the statute of limitations had run. From the time the original
complaint was filed, the [defendants] were aware that they were
being sued for their alleged negligence resulting in the death of a
named decedent. Every element necessary to establish the two
causes of action against the [defendants] was set forth in the
complaint, including the erroneous fact that the [plaintiffs] had
been appointed administrators of their daughter's estate.
Id.
Like the Commonwealth Court in Lesho, we read nothing in McGuire,
D’Orazio or Gasbarini as precluding the conclusion that the trial court
reached in this case. Indeed, Edwards was named the executor in her late
husband’s last will and testament and timely filed her FELA action in which
she averred that she was the personal representative of her late husband’s
estate. Like the defendants in McGuire, D’Orazio, Gasbarini and Lesho,
Norfolk Southern was notified before the statute of limitations had expired
that an action had been filed against it by a plaintiff “who was, at least
putatively, the personal representative of the decedent’s estate.” Prevish,
692 A.2d at 204. While it may be preferable that the plaintiff seek
appointment before the statute runs, we do not find that failure to do so
compels dismissal of a complaint when the plaintiff is the named executor and
avers that she is the personal representative in the timely-filed complaint.
Order affirmed. Case remanded. Jurisdiction relinquished.
Judge McCaffery joins the Opinion.
Judge Stabile files a Dissenting Opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2023
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