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By William T. MacMinn, Esquire Reprinted with permission from the January 25, 2014 issue of The Legal Intelligencer. (c)
2014 ALM Media Properties. Further duplication without permission is prohibited.
Of all the steps involved in litigating an action, one of the most important is correctly identifying the opposing party. While this step may seem to be the most obvious part of the process, misidentifying the defendant can prove fatal to the underlying cause of action—and this particularly is true where the defendant, unbeknownst to a lawyer and his or her client, dies before legal proceedings begin. Even though the Pennsylvania Rules of Civil Procedure permit a party “at any time [to] change the form of action, correct the name of a party or amend his pleading,” the door to this liberal right to amend slams closed once the statute of limitations on the underlying claim expires.
These principals create a trap for the unwary in situations where the opposing party dies before a plaintiff could, or should have, filed the original cause of action. The Supreme Court of Pennsylvania long has held that “the death of an individual renders suit against him or her impossible where an action is not commenced prior to death.” Myers v. Estate of Wilks, 655 A.2d 176, 178 (Pa. Super. 1995) (citing Erhardt v. Costello, 264 A.2d 620, 623 (Pa. 1970)). Practically speaking, then, any complaint filed against someone after that person has died is a legal nullity rendering any attempt to amend such a pleading void.
Thus, while filing a writ of summons or a complaint typically serves to toll the statute of limitations, filing against a deceased defendant will not do so. No relief is provided by the Pennsylvania Probate, Estate, and Fiduciaries Code which expressly provides that “the death of a person shall not stop the running of the statute of limitations”. 20 Pa. C.S. § 3383. Put simply, the statute of limitations on the underlying cause of action continues to run as if the plaintiff had taken no action at all.
Section 3383 provides some additional time to take action. It extends the statute of limitations one year from the date of the defendant’s death, only if the defendant died within one year of the date on which the statute on the underlying claim would expire. Id.
The Pennsylvania Superior Court recently applied these principles in McClean v. Djerassi, 2013 Pa. Super. LEXIS 4578 (Pa. Super. 2013), a slip and fall action on appeal from the Philadelphia Court of Common Pleas. In McClean, Appellant fell in front of property owned by Isaac Djerassi (“Defendant”) on April 6, 2010. Unbeknownst to Appellant, Defendant died on November 4, 2011. The date of death is within one year of the running of the two year statute of limitations on the underlying negligence claim. Under §3383, the statute of limitations was extended to one year from the date of death, or November 4, 2012.
Plaintiff filed the complaint on March 29, 2012, mere days before the (original) two-year statute of limitations was set to expire. See 42 Pa. C.S. § 5524(2). He attempted to serve Defendant on April 9, 2012, but learned shortly thereafter, through an affidavit filed by the process server, that Defendant had passed away. Inexplicably, he took no further action until January 21, 2013 (after the November running of the death-extended statute) when he filed an Amended Complaint. The trial court ultimately held that “Appellant’s Amended Complaint was void because the sole defendant was a dead person,” and added that the only way to cure the misstep would have been to file a new complaint, this time naming the Administrator or Executor of the Estate. McClean, 2013 Pa. Super. at *4. On appeal, the Superior Court upheld the lower court’s ruling. It reasoned that Appellant’s original complaint against Defendant was “void and of no effect, as Defendant was deceased at the time of filing,” and that the statute of limitation was tolled only until November 4, 2012, one year following Defendant’s death. Id. at *11; See 20 Pa. C.S. § 3383. As Appellant took no action to effectively toll the statute during this period, the action was time barred.
McClean is one of many examples of unwary plaintiffs falling victim to an unwitting failure to timely identify and sue the correct opposing party. When a plaintiff discovers that the putative defendant has passed away prior to the running of the statute it is easy enough to file suit against the estate … if there is one. What happens when there isn’t?
The Probates, Estates and Fiduciaries Code permits a creditor, such as a personal injury plaintiff, to raise an estate for the deceased defendant. To do so, the plaintiff must file a petition in the Orphan’s Court to appoint a personal representative. The Court will issue a citation which must be served on known heirs. Once the petition is adjudicated – a process that may take a month or more- the Court will order that an estate be raised naming a person nominated by the Petitioner as the personal representative. Then, and only then, can the plaintiff institute his cause of action tolling the statute.
To avoid falling into this trap, cautious practitioners should file well before the expiration of the statute of limitations and diligently monitor service. Prompt action to raise an estate, if necessary, and then file a complaint (and not amend the first filing) naming the personal representative will be required to avoid the bar of the statute of limitations.
Plan B: Litigating Non-Solicitation Provisions
By Patricia C. Collins, Esquire
Reprinted with permission from December 12, 2013 issue of The Legal Intelligencer. (c)
2013 ALM Media Propeties. Further duplication without permission is prohibited.
Increasingly, employers and their attorneys meet resistance when seeking to enforce covenants not to compete. States such as Georgia and California continue to refuse to honor those restrictions. Even in states that recognize the validity of such agreements, Courts can restrict the geographic or temporal scope of the agreement, refuse to find sufficient irreparable harm to permit the entry of a temporary or preliminary injunction, or find other equitable grounds to refuse to enforce the covenant not to compete. Employers do have a back-up plan, however. Recent cases illustrate that the court will enforce agreements not to solicit customers and clients after termination. These cases also illustrate that courts will look to the nature of the contacts with clients or employees to determine if there is a breach of a non-solicitation provision.
In Corporate Technologies Inc. v. Harnett, the United States Court of Appeals for the First Circuit affirmed the district court’s grant of a preliminary injunction against a former employee of Corporate Technologies Inc. and his new employer. The preliminary injunction restricted the employee from doing business with certain customers of Corporate Technologies with whom he worked during his employment, and required the new employer to withdraw bids which the employee prepared during his employment with the new employer. The First Circuit court noted that the district court was specifically applying the non-solicitation and not the non-compete provisions of the agreement. Accordingly, both courts engaged in a discussion of the applicable requirements for the entry of a preliminary injunction (which are the same under Massachusetts and Pennsylvania law). Notably, the First Circuit did not engage in a discussion of the reasonableness of the geographic or temporal scope of the agreement, or whether the employer had a “protectable interest” served by the non-solicitation provision. The district court found that the employee breached the non-solicitation provisions of the agreement, and the First Circuit affirmed the grant of the preliminary injunction.
In a recent New York case, the Supreme Court for New York County did address the distinction between covenants not to compete and prohibitions against solicitation. The court in OTG MGT Inc. v. Konstandinitis noted that the non-solicitation provisions did not implicate the kind of “powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood.” In Pennsylvania, the Superior Court in Misett v. Hub Int’l PA, LLC, 6 A.3d 530 (Pa. Super. 2011), discussed that a non-solicitation provision would be subject to a test of “reasonableness,” without so holding, and without making a determination as to the particular non-solicitation provision at issue in that case. Id. at 540. The Court also discussed, on the other hand, that a non-solicitation provision does not put the employee out of his chosen industry in the same manner that a covenant not to compete does. Id. at 537 n.4.
This distinction may prove useful in litigating non-solicitation provisions, even where a court is reluctant to enforce a non-compete. These cases seem to suggest that the equities do not weigh so significantly in the employee’s favor where the non-solicitation is at issue. In Harnett, it was not an issue at all. In Pennsylvania, the case law is unclear as to whether the court should look for a “protectable interest” or examine the reasonableness of the scope of the non-solicitation, but employers can rely upon the dicta in Missett to argue that the non-solicitation will not put the employee of out of his or her chosen profession.
When it comes to proving the violation, recent case law demonstrates that each case will turn on its particular facts. The Harnett Court
rejected the notion that the question of who made the “initial contact” (the client or the former employee) could serve as a “bright line” test in determining whether there was a breach of non-solicitation provision. The First Circuit noted that there exists merely a “metaphysical” difference between actively soliciting business and merely accepting new business, describing the distinction as “hazy.” The court specifically affirmed the district court’s entry of a preliminary injunction even though there was evidence that the client made the initial contact. The First Circuit also assigned weight to the new employer’s targeted mailings announcing the addition of Harnett as an employee of the new employer in concluding that the district court had properly applied the law to the facts of the case.
Social media and email “blasts” add to the haziness of the case law. For example, in KNFT Inc. v. Muller, a Massachusetts trial court found that a former employee’s announcement of her employment on LinkedIn.com did not constitute a violation of a non-compete or non-solicitation provision. The trial court noted that using Linked In to announce a new position did not amount to solicitation.
These cases demonstrate that effective evidence of a breach of non-Solicitation will depend upon the quality of the contact. While the court may examine who made the initial contact, it will also examine, as the court in Harnett did, what was discussed during the contact. Employers should prepare evidence of social media activity, and targeted mailings and emails, in addition to evidence regarding specific contacts with employees or clients.
Non-solicitation provisions may serve as an effective “Plan B” where courts are increasingly unwilling to enforce covenants not to compete. Where the quality of the evidence supports it, equitable concerns may be less pressing to a trial judge, particularly because the non-solicitation provision will allay the often-repeated concerns of trial judges that an injunction will put a person out of their chosen profession.
Patricia Collins is a Partner with Antheil Maslow & MacMinn, LLP, based in Doylestown, PA, with a branch office in Princeton, NJ. Her practice focuses primarily on commercial litigation, employment and health care law.