Swatt, A. v. Nottingham Village

J-E04002-24 2025 PA Super 138

ANN MARIE SWATT, PERSONAL : IN THE SUPERIOR COURT OF

REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA

MADLYN BLUSIUS :

:

Appellant :

:

:

v. :

: No. 1506 MDA 2021

:

NOTTINGHAM VILLAGE; :

NOTTINGHAM MANAGEMENT, LLC; :

NOTTINGHAM VILLAGE RETIREMENT :

CENTER, LLC; NOTTINGHAM VILLAGE :

HEALTHCARE SERVICES, INC.; :

LEEDS HEALTHCARE SERVICES, :

INC.; SYNERGY GRANDVIEW :

PHARMACY, LLC AND FREDERICK :

KESSLER

Appeal from the Order Entered October 12, 2021

In the Court of Common Pleas of Northumberland County

Civil Division at No: CV-2014-00830

JANICE HAWBAKER, ESQ., : IN THE SUPERIOR COURT OF

EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA

MADLYN BLUSIUS :

:

:

v. :

:

:

NOTTINGHAM VILLAGE; : No. 1507 MDA 2021

NOTTINGHAM MANAGEMENT, LLC; :

NOTTINGHAM VILLAGE RETIREMENT :

CENTER, LLC; NOTTINGHAM VILLAGE :

HEALTHCARE SERVICES, INC.; AND :

LEEDS HEALTHCARE SERVICES, INC. :

:

:

APPEAL OF: ANN MARIE SWATT, :

PERSONAL REPRESENTATIVE OF THE :

ESTATE OF MADLYN BLUSIUS :

J-E04002-24

Appeal from the Order Dated October 12, 2021

In the Court of Common Pleas of Northumberland County

Civil Division at No: CV-2014-00005

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J.,

KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.

CONCURRING/DISSENTING OPINION BY STABILE, J.: FILED: JULY 2, 2025

I concur in the result reached by the Majority as to the contract claims

that are premised upon breach of express contractual undertakings, allowing

them to survive the Nursing Home’s motion for summary judgment. I

respectfully dissent to the extent that the Majority would find that the breach

of only implied contractual duties may be sufficient for a breach of contract

action, as I believe this conflicts with long-held controlling precedent, and

most notably our Supreme Court’s 2014 decision in Bruno v. Erie Ins. Co.,

106 A.3d 48 (Pa. 2014).

I also respectfully disagree with President Judge Lazarus’s application of

the relation back doctrine in her concurring opinion (“concurring opinion”),

because it is inconsistent with our Supreme Court’s decision in Estate of

Gasbarini v. Medical Ctr. of Beaver Cnty., 409 A.2d 343 (Pa. 1979). I

concur, however, with President Judge Lazarus’s conclusion that the relation

back doctrine does not save Elizabeth’s survival action.

I. Gist of the Action

It is my understanding, based upon binding precedent, that a plaintiff

may only pursue a remedy in contract (assumpsit) where the defendant has

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breached an expressly agreed upon contractual term. This requirement

prohibits recovery in contract where the only duty breached is implied by

operation of law. I therefore dissent from the Majority’s decision to the extent

it says otherwise.

The central issue in these en banc proceedings is whether “the gist of

the action doctrine” precludes the breach of contract claims asserted by Ann

Marie Swatt, as personal representative of the Estate of Madlyn Blusius

(Swatt). But framing the issue this way is somewhat of a misnomer because

the more fundamental task of our review is simply to determine whether the

trial court erred in dismissing Swatt’s breach of contract claims on the ground

that they were, in actuality, untimely tort claims barred by the statute of

limitations.

The gist of the action doctrine1 has long been used to differentiate

negligence actions that sound in tort from breach of contract actions sounding

in assumpsit. See Dittman v. UPMC, 196 A.3d 1036, 1057 n.4 (Pa. 2018)

(Saylor, J., concurring and dissenting) (“The gist of the action doctrine serves

as a means by which courts categorize claims to maintain the distinction

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1 The Majority has commendably tracked down when and how “the gist of the

action” haphazardly came to be referred to as a “doctrine” about 26 years

ago, in Sunquest Info Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F.

Supp.2d 644, 651 (W.D. Pa. 1999). However, I do not think it is fair to say

that the Sunquest court “created” the doctrine by referring to it as one. A

“doctrine” is defined generally as nothing more than a “legal principle, that is

widely adhered to.” See BLACK’S LAW DICTIONARY (12th ed. 2024). The

basic principle of the “gist of the action” has been recognized in Pennsylvania

since at least 1830. See Zell v. Arnold, 2 Pen. & W. 292 (Pa. 1830).

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between theories of breach of contract and tort.”). In Bruno, our Supreme

Court was crystal clear in holding that a breach of contract action must be

“founded on the breach of any of the specific executory promises which

comprise the contract.” A breach of contract action cannot be viable unless

the breach of a specific executory promise has been alleged. See Bruno, 106

A.3d at 70.2

I believe it is therefore inaccurate to suggest, as the Majority does, that

the gist of the action doctrine cannot come into play where a breach of

contract claim has been asserted in a party’s complaint. If a tort claim is

legally insufficient because the nature of the duty allegedly breached only

arises from the terms of a contract, then it logically follows that a contract

claim may be legally insufficient where the nature of the duty alleged only

arises from tort. See Bruno, 106 A.3d at 70.

Further, Pennsylvania’s gist of the action doctrine does not, as the

Majority states, operate to force an “election” of remedies, “convert” one type

of claim into another, or deprive a party of contractual rights by deeming bona

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2 Indeed, the Pennsylvania Rules of Civil Procedure do not reference “the gist

of the action doctrine” as a ground for dismissal or for judgment to be entered

in favor of the defending party. The relevant inquiry is whether a claim is

sufficiently pleaded, see Pa.R.Civ.P. 1028(a)(4) (legal insufficiency

(demurrer)), or the plaintiff has failed to produce sufficient facts essential to

the cause of action, see Pa.R.Civ.P. 1035.2 (summary judgment). A litigant

may discuss the gist of the action to distinguish one type of claim from

another. When appropriate, the doctrine may be used to argue that a cause

of action is deficient as a matter of law.

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fide breach of contract claims as sounding only in tort. The doctrine is simply

a tool which assists courts in ascertaining the nature of a claim, and the true

source of the duty being alleged, regardless of how the claim is styled.

Nor has the doctrine ever, at least in modern times, been used by a

Pennsylvania appellate state court to require a party to elect relief in tort or

assumpsit, where either type of action is otherwise viable as pleaded. See

e.g., eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.

Super. 2002) (stating that “it is possible that a breach of contract also gives

rise to an actionable tort.”). I have found no such decision holding that a

party is bound to choose between a tort or breach of contract claim despite

that the elements of each type of cause of action have been met.3

Nevertheless, the Majority endeavors to drive home the already-

established fact that tort claims and breach of contract claims may co-exist in

a single action. The Majority goes astray in assuming that, since there are

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3 Granted, there is some language in a federal case discussed by the Majority,

Sunquest, 40 F. Supp.2d 644, which arguably suggests that a party may not

pursue a tort claim and a breach of contract in a single action. However, the

underlying principle of the gist of the action was for the most part correctly

summarized in that case. Further, Sunquest has only ever been cited in two

Pennsylvania state appellate decisions, and neither of them relied on it for the

proposition that a plaintiff must elect between otherwise sufficient tort and

breach of contract claims that arise from the defendant’s performance of a

contract. In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa.

2004), the gist of the action doctrine was not mentioned at all. In eToll, this

Court held that a claim of fraud could not sound in tort because it was at its

heart a breach of contract claim. The plaintiff was not forced into an “election”

of remedies because the plaintiff never had a true tort claim to begin with.

See eToll, 811 A.2d at 17.

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implied duties, obligations, or promises in all contracts for professional

services, and those implied terms are derived from tort-related public policy

considerations, any breach of an implied contractual duty, alone, may sustain

both a breach of contract claim and a tort claim in a single action. See Maj.

Op., at 57-58. The Majority reasons from this dubious premise that, in the

above scenario, the gist of the action doctrine can never be used to bar a

breach of contract claim. See id. I believe this is incorrect, as such a rule

would blur, and indeed, erase the distinctions between those causes of action,

and amount to a significant departure from decades of Pennsylvania decisional

law, including our Supreme Court’s holding in Bruno.

To justify its approach, the Majority has reached back – far back – to

find authorities permitting a breach of contract action to be based entirely on

the breach of an implied duty, in the absence of a breach of an express

contractual term. I question whether these cases still are germane to the

state of the law in the present day, but in any event, they do not justify the

Majority’s new rule.

For example, the Majority cites Wingate v. Mechanics' Bank, 10 Pa.

104, 108 (Pa. 1848), Zell v. Dunkle, 27 A. 38 (Pa. 1893) (referred to as “Zell

II” by the Majority), and other ancient cases seemingly for the proposition

that the breach of an implied contractual obligation alone may sustain the

duty element of a breach of contract action. My reading of those cases does

not support the Majority’s position.

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In Wingate, our Supreme Court observed that an implied obligation of

good faith is formed between contracting parties, and that a breach of contract

action may be founded in part upon a party’s failure to honor that implied

promise. Yet, in the Court’s reasoning, the implied term had to be attendant

to an express and specified contractual undertaking:

Because the law is clear, that if an agent undertake to do a

specified thing for a stipulated reward, he is bound to

exercise due diligence to accomplish what he has agreed to

do; and to observe good faith towards his principal in every

step, either of success or failure, towards accomplishing the end.

The law implies a promise from brokers, bankers, or agents, and

attorneys, that they will severally, in their respective callings,

exercise competent skill and proper care in the service they

undertake to perform; in which, if they fail, an action lies

to recover damages for the breach of their implied promise.

Wingate, 10 Pa., at 109 (citing Boorman v. Brown, 8 Eng. Rep. 1003 (H.L.

1844)) (emphasis added).4

The defendant in the case, a bank, had contracted with the plaintiffs to

make collections on their behalf, and the Court ruled that for such contracts,

____________________________________________

4 The Wingate Court cited Brown, where a judge in the English House of

Lords ruled that a plaintiff could sue in both tort and assumpsit to recover

damages. The plaintiffs in Brown had contracted with the defendant to

deliver oil shipments to a third party; they alleged that the defendant

breached an implied duty to receive the purchase price, as this would be

necessary to carry out the contractual task with necessary care and skill.

Without further rehashing the facts and statements of law in Brown, it suffices

to say that the Majority has interpreted the case as holding that a plaintiff

need not assert a breach of an express contractual term for an action in

assumpsit as long as an implied contractual duty has been breached. Even if

the English court said that, it is of no moment here because we are not

governed by English law, and controlling authority in this jurisdiction requires

the breach of an express contractual duty to sustain a breach of contract

action.

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“a plain intimation is given, that if the agreement had been to collect the

notes, notice [to the customers that collection could not be timely made]

would have been necessary.” Id., at 110. The plaintiff could only sue in

contract based on the bank’s failure to fulfill the implied promise to give notice

because that duty was incident to the specifically agreed upon task of

collecting on the note, which the bank failed to do. See id.

Similarly, in Zell, the plaintiff hired the defendant to fix a boiler, and

while the device was in the defendant’s repair shop, it exploded. The plaintiff

argued that the defendant negligently stored the object and thereby violated

the contract of repair despite that there were no express terms regarding

storage. Our Supreme Court found that the contract could still be breached

in that manner because:

[the boiler’s] storage, from the time the article is received until

the work upon it is completed, is a necessary incident of the

undertaking of the workman.

By receiving the boiler into their possession for the purpose

of repairing, they must be held to have subjected

themselves to an undertaking, implied from the nature of

the express contract for repairs, to do what, in good faith

and common fairness, ought to be done for the protection

of their customer's goods. If they have failed in the

performance of the duty imposed by this implied

undertaking, an action of assumpsit will lie.

27 A. at 38 (emphasis added).

Again, the plaintiff in Zell was asserting that the defendant breached an

implied contractual term requiring the storage of an item; the plaintiff was

allowed to proceed with the contract claim despite the lack of express terms

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concerning storage because it was implied and necessarily incident to express

contractual terms. See id.

The salient point of Wingate and Zell is not that a breach of an implied

duty, alone, may sustain a breach of contract action sounding in assumpsit.

The Court was explaining in those cases that by entering into a contract to do

a specific task, the defendant necessarily had agreed, through an implied

obligation, also to do the things necessary for the completion of that task.

The plaintiff only could sue in assumpsit based on the breach of implied duties

insofar as they were essential for the performance of an express contractual

undertaking. In situations where a party happens to have duties implied by

the existence of a contract, but the conduct constituting breach relates to

something other than a task required by an express contractual term, the

claim only sounds in tort.

This is not an esoteric concept in our jurisprudence that requires

historical underpinnings to confirm. In a breach of contract action, any implied

duties, such as the duty of good faith and fair dealing, or a standard of

professional competence, give context to an express term and help identify

what had to be done in order for the express terms to be carried out. See

John B. Conomos, Inc. v. Sun Co., Inc. (R&M), 831 A.2d 696, 706 (Pa.

Super. 2003) (“Unequivocal contractual terms hold a position superior to any

implied by courts, leaving implied covenants to serve as gap filler.”) (Emphasis

added). Implied duties (or covenants) are for that reason considered to be

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part of a contract, but they may only be referred to in a contract claim as a

way “to harmonize the reasonable expectations of the parties with the intent

of the contractors and the terms in their contract.” Conomos, 831 A.2d at

707. The breach must still relate to a specific thing that the defendant agreed

to do. See id.

Pennsylvania courts have recognized the “duty of good faith” or the

“doctrine of necessary implication,” which are similar limited exceptions to the

traditional requirement in contract law that a party may only be sued in

assumpsit based on her performance of an express term contained within a

contract. See Stamerro v. Stamerro, 889 A.2d 1251, 1258-59 (Pa. Super.

2005); Palmieri v. Partridge, 853 A.2d 1076, 1079 (Pa. Super. 2004) (the

common law “doctrine of necessary implication . . . will imply an agreement

by the parties to a contract to do and perform those things” which would be

necessary to carry out the purpose of the contract.”); see also Glassmere

Fuel Service, Inc. v. Clear, 900 A.2d 398, 403 (Pa. Super. 2006) (declining

to interpret contract as containing an implied or necessary obligation for

defendant to provide specific financing services, where “such an obligation

[did] not appear on the face of the Agreement itself . . . [or] contain any

provisions which suggest that financing was even contemplated by either

party.”); Jamison v. Concepts Plus, Inc., 552 A.2d 265 (Pa. Super. 1988)

(holding that a buyer of property would not be entitled to recover a deposit

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from a seller under a contractual contingency if the buyer had breached an

implied duty to use diligence to obtain development permits).

For the purposes of a breach of contract action, an implied duty is a “gap

filler” that enables courts to determine whether an express contractual term

would necessitate additional, implied obligations which would sustain the

pleading requirements of the claim. See Conomos, 831 A.2d at 706. The

implied duty alone, then, would not provide an independent cause of action in

tort. See id.; see also Creeger Brick and Bldg. Supply Inc. v. Mid-State

Bank and Trust Co., 560 A.2d 151, 152 (Pa. Super. 1989) (breach of

contract action was properly dismissed as legally insufficient because plaintiff

only asserted breach of implied duty for a bank to deal with a borrower in

good faith, and no breach of an express contractual terms was alleged).

The limited recognition of contractual terms or duties by implication

aligns not only with old cases like Wingate and Zell, but also with the much

more recent holding of Bruno, which requires a breach of contract action to

ultimately be derived from an express contractual term requiring performance

of a specific task. Swatt herself understood this, as she argues in her brief

that her contract claims were sufficient because she had “continually

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maintained that the Defendants breached [their] contract-specific promises.”

Appellant’s Brief, at p. 64.5

In addition to misconstruing the above authorities, the Majority

needlessly abrogates many of our prior decisions, and disapproves of related

federal caselaw, which supposedly imposed on litigants an “election” or

“binary choice” between pursuing a claim in tort or through a breach of

contract claim. Again, however, the cases overruled by the Majority did not

actually apply the gist of the action doctrine to “convert” viable tort claims or

otherwise “extinguish contractual rights” that may be vindicated in a breach

of contract action.

For present purposes, the pertinent issue in those cases only had to do

with whether the elements of a breach of contract claim were adequately

pleaded. See, e.g., Outerlimits Techs., LLC v. O’Connor, No. 169 EDA

2023 (Pa. Super. filed December 8, 2023) (unpublished memorandum);

Corliss v. Lee A. Ciccarelli, PC, No. 891 EDA 2021 (Pa. Super. filed January

4, 2022) (unpublished memorandum); and Johnstone v. Raffaele, No. 2581

EDA 2019 (Pa. Super. filed October 30, 2020) (unpublished memorandum);

see also New York Cent. Mut. Ins. Co. v. Edelstein, 637 F. App’x 70 (3d

Cir. 2016) (non-precedential federal decision) (“In sum, a claim sounds in

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5 Even if the Majority correctly had construed our Supreme Court’s pre-Bruno

opinions concerning implied duties in assumpsit, we would nevertheless be

bound, post-Bruno, to follow the Court’s most recent pronouncement on the

issue.

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negligence unless it is alleged that the party breached one of the ‘specific

executory promises which comprise the contract.’”) (Quoting Bruno, 106 A.3d

at 70).

As Judge Kunselman correctly explained just five years ago in one of

those cases, Johnstone, “the mere existence of a contract between two

parties does not, ipso facto, classify a claim by a contracting party for injury

or loss suffered as the result of actions of the other party in performing the

contract as one for breach of contract.” Johnstone, No. 2581 EDA 2019, at

*8-9 (quoting Bruno, 106 A.3d at 69).

The gist of the action doctrine was relevant in Johnstone and similar

cases because it was used to help the courts determine whether the plaintiff

was alleging the breach of a duty arising from the express terms of a contract,

or solely from a broader duty arising under a tort theory of public policy. See

id. (“[T]he focus is on the nature of the duties that were allegedly breached.”).

The above line of cases is completely in accord with our Supreme Court’s

mandate in Bruno that a breach of contract action must be predicated on the

defendant’s failure to perform a “specific” and “express” term of an

agreement:

If the facts of a particular claim establish that the duty breached

is one created by the parties by the terms of their contract — i.e.,

a specific promise to do something that a party would not

ordinarily have been obligated to do but for the existence of the

contract — then the claim is to be viewed as one for breach of

contract. If, however, the facts establish that the claim

involves the defendant's violation of a broader social duty

owed to all individuals, which is imposed by the law of torts

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and, hence, exists regardless of the contract, then it must

be regarded as a tort.

****

Consequently, a negligence claim based on the actions of a

contracting party in performing contractual obligations is

not viewed as an action on the underlying contract itself,

since it is not founded on the breach of any of the specific

executory promises which comprise the contract. Instead,

the contract is regarded merely as the vehicle, or mechanism,

which established the relationship between the parties, during

which the tort of negligence was committed.

Bruno, 106 A.3d at 68-70.

In the present case, then, our disposition as to Ann Marie Swatt’s breach

of contract claims turns on whether she sufficiently established the Nursing

Home’s breach of a specific and express contractual duty. See id. I agree

with the Majority that the trial court erroneously dismissed Swatt’s breach of

contract claims on the ground that they only sound in tort. Unlike the Majority,

however, I reach this conclusion by strictly evaluating the allegations pleaded

in the operative complaint, as well as the evidence presented, and not by

merely recognizing that the Nursing Home was alleged to have breached

implied duties arising from the privity of the parties.

Swatt asserted the breach of express contractual terms, including the

requirement to provide the decedent with “room, meals, housekeeping

services . . . and such other personal services as may be required for [the

decedent’s] health, safety, welfare, good grooming and well-being[.]” Ann

Marie’s Opposition to Nursing Home’s Motion for Summary Judgment, Ex. A

(“Contract”). Next, Swatt outlined both the specific ways in which those

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express terms were violated, see id., as well as the evidence establishing

those breaches. See Plaintiff’s Memorandum of Law in Support of Opposition

to Defendants’ Motion for Summary Judgment, 9/8/2020, at 10-13. Under

Bruno, this was enough to establish the existence of a contractual duty, as

well as a breach of such a duty. We may therefore dispose of this issue without

resorting either to the gist of the action doctrine or inquiring into whether the

Nursing Home breached any implied contractual obligations.6

Thus, I concur in the result reached by the Majority to extent that the

contract claims now before us are premised upon the breach of express

contractual undertakings that survive the Nursing Home’s motion for summary

judgment. To the extent that the Majority would find that implied contractual

obligations are themselves sufficient for a breach of contract action, I dissent,

as this conflicts with controlling precedent, most notably the holding of Bruno.

The Majority’s adoption of a new pleading standard for breach of

contract claims – dispensing with the requirement of a breach of an express

contractual duty – erodes the distinction between claims sounding in tort and

contract, undercutting almost 200 years of effort on the part of our Supreme

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6 I also agree with the Majority that the Nursing Home had an implied

obligation to perform its contracted tasks in a skillful and competent manner.

Swatt could pursue independent tort claims on the breach of these implied

obligations as long as she could timely allege that the Nursing Home failed to

perform them up to the required standard, and the basis for the alleged

breaches was not founded upon an express term of her contract. Any breach

of those implied duties would be implicated in Swatt’s breach of contract action

only if based on a specific and express contractual undertaking.

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Court to maintain them as separate causes of action. We can reach the same

outcome in this case by keeping those distinctions intact.7

II. Statute of Limitations / Relation Back Doctrine

Although I agree with the concurring opinion that the relation back

doctrine does not save Elizabeth’s survival action, I respectfully submit that

the opinion’s application of the doctrine is inconsistent with our Supreme

Court’s decision in Gasbarini. Applying Gasbarini, I conclude that the

relation back doctrine does not rescue Elizabeth’s survival action from the

statute of limitations.

It is well settled that a decedent’s estate cannot be a party to litigation

unless a personal representative exists. Gasbarini, 409 A.2d at 346. The

relation back doctrine articulated in Gasbarini provides that under limited

circumstances, courts will validate lawsuits filed by the personal

representative that precede the date of his appointment. Id. at 346-47.

Specifically, relation back applies when, before the statute of limitations

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7 In Bruno, our Supreme Court gave an overview of several of its earliest

decisions in which the gist of the action doctrine was used “to distinguish a

breach of contract claim from a tort claim[.]” 106 A.3d at 61-67. The oldest

of those, Zell v. Arnold, 2 Pen. & W. 292 (Pa. 1830) (referred to as “Zell I”

by the Majority), was decided 195 years ago. The Bruno Court approved of

Zell’s holding that “the gist of a property owner’s action against a millwright,

whom he had contracted to build a clover mill and to level the adjacent

streambed, was tortious since, although arising out of performance of the

contract, was not for breach of the millwright’s contractual duties, but rather

for alleged negligence in performing the contracted tasks.” Bruno, 106 A.3d

at 56.

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expires, the plaintiff files a civil complaint or writ of summons identifying

herself as personal representative and petitions for appointment as personal

representative of the decedent’s estate. Id. Failure to perform either of these

steps within the statute of limitations renders the action a legal nullity. Id.

In Gasbarini, the plaintiff filed a complaint or writ of summons within

the statute of limitations that identified the plaintiff as the administrator of the

decedent’s estate. The plaintiff applied for letters of administration before

the statute expired, but letters were not issued until after the statute expired

due to the plaintiff’s failure to post a bond. Our Supreme Court held that

relation back applied because the plaintiff timely filed a civil action and applied

for letters within the statutory period. Only because the plaintiff satisfied both

factors did the Court decide that her appointment as administrator was

“substantially assured” at the time she filed her action. Id., 409 A.2d at 346.

The “only” deficiency in the plaintiff’s complaint, said the Supreme Court, “was

the fact that she had not been named administratrix of decedent’s estate.”

Id.

In reaching this determination, Gasbarini found that “the instant case

is on all fours” with this Court’s decision in McGuire v. Erie Lackawanna Ry.

Co., 385 A.2d 466, 468 (Pa. Super. 1978). Gasbarini found “persuasive”

McGuire’s reasoning that (1) prior to the statute of limitations, the

plaintiff/administrator’s action was timely because she filed her complaint and

applied for letters of administration, and (2) “the only thing that held up the

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issuance of letters was [the plaintiff’s] failure to post a nominal bond of

$1,000.” Gasbarini, 409 A.2d at 346 (citing McGuire, 385 A.2d at 468).

The concurring opinion describes the relation back doctrine as follows:

Generally, in cases in which the doctrine has been applied, the

plaintiff has filed a complaint within the statute of limitations, but

before her appointment as personal representative has been

finalized. Once the appointment is official, the doctrine applies to

validate the acts of the personal representative that occurred prior

to her appointment.

Concurring Opinion at 4. Although the concurring opinion correctly recognizes

that the action must be filed within the statute of limitations, it fails to

acknowledge Gasbarini’s second requirement that the individual filing the

action must petition for appointment as personal representative within the

statute. It leaves open the possibility that relation back applies where the

plaintiff files the action before the statute expires but fails to petition for

appointment as personal representative until after the statute expires.

Gasbarini does not permit relation back under those circumstances.

Applying the relation back test articulated in Gasbarini, I conclude that

Elizabeth’s survival action fails. Prior to the statute of limitations for survival

actions, Hawbaker applied for and obtained letters testamentary. Hawbaker

then filed a writ of summons identifying herself as “executrix” (personal

representative) of the decedent’s estate. A dispute subsequently arose over

whether Hawbaker had a conflict of interest in pursuing an action against the

nursing home. The court disqualified Hawbaker from suing the nursing home

and appointed Elizabeth as administratrix pro tem to prosecute this lawsuit

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while permitting Hawbaker to remain personal representative for other

functions. Following expiration of the statute of limitations, Elizabeth filed a

complaint under a different caption number than Hawbaker’s action. The

complaint identified Elizabeth as plaintiff in her individual capacity instead of

administratrix pro tem of the decedent’s estate.

Elizabeth’s survival action satisfied only one of Gasbarini’s two relation

back criteria, the condition that an individual apply to become personal

representative prior to expiration of the statute of limitations. Here, Hawbaker

applied (and received) letters testamentary prior to the statute, and the court

substituted Elizabeth as administratrix pro tem after the statute. Elizabeth’s

substitution thus “related back” to Hawbaker’s application for letters prior to

expiration of the statute. The second relation back condition—filing an action

identifying the plaintiff as personal representative of the decedent’s estate—

was not satisfied, because Elizabeth filed her complaint after the statute of

limitations under a different caption number than Hawbaker’s action without

identifying herself as administratrix pro tem.

Accordingly, pursuant to Gasbarini, I concur with President Judge

Lazarus’s conclusion that the relation back doctrine does not rescue Elizabeth’s

survival action.

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