838 Rule 2355--notice of death of a party; substitution of personal representative; proposed recommendation no. 179

PART I.  GENERAL

[231 PA. CODE CH. 2350]

Rule 2355--Notice of Death of a Party; Substitution of Personal Representative; Proposed Recommendation No. 179

[32 Pa.B. 2317]

   The Civil Procedural Rules Committee proposes that new Rule of Civil Procedure 2355 governing the procedure upon the death of a party be promulgated as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

   All communications in reference to the proposed recommendation should be sent not later than June 7, 2002 to Harold K. Don, Jr., Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or e-mail to civil.rules@supreme. court.state.pa.us.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 2350.  SUBSTITUTION OF PARTIES

Rule 2355.  Notice of Death of a Party. Substitution of Personal Representative.

   (a)  If a named party dies after the commencement of an action, the attorney of record for the deceased party shall file a notice of death with the prothonotary. The procedure to substitute the personal representative of the deceased party shall be in accordance with Rule 2352.

   Official Note:  Counsel for the deceased party should file the notice of death promptly upon learning of the death of the party and serve a copy upon every other party to the action.

   See Section 3375 of the Decedents, Estates and Fiduciaries Code, 20 Pa.C.S. § 3375 which provides that if a plaintiff dies and a personal representative is not appointed within one year after a suggestion of the death, the court, upon petition, shall abate the action if the delay in taking out letters is not reasonably explained.

   This rule does not address the case law discussing whether the commencement of an action by or against a deceased person is a nullity and therefore does not toll the running of the statute of limitations.

   (b)  The notice of death required by subdivision (a) shall be substantially in the following form:

(CAPTION)

NOTICE OF DEATH

   The death of _____ , a party to the above action, on _____ during the pendency of this action is noted upon
   Date

the record.

                              _________________
                              Attorney for the Deceased Party

                              _________________
                              Address

Explanatory Comment

   The rules of civil procedure presently make no mention of the procedure upon the death of a party to an action. New Rule 2355 is proposed to alert the parties to the necessity of notifying other parties to the action of the death, of noting the death upon the record and of substituting as a party to the action the personal representative of the deceased party. The rule provides a form of notice which is to be filed with the prothonotary. The rule does not propose a new procedure to substitute the personal representative but rather incorporates the familiar existing procedure of Rule 2352 governing substitution of a successor.

   The proposed rule applies to an action as to which a party dies after its commencement. As suggested by the note, the rule has no application when an action is commenced against a person who is deceased at the time it is commenced.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 02-838. Filed for public inspection May 10, 2002, 9:00 a.m.]