SAYLOR, Judge:

Has a survival action been timely commenced, when a writ of summons naming the decedent's estate as plaintiff is filed before the statute of limitations has run and a complaint naming the executor of the estate as plaintiff is filed after the statute of limitations has run?

This is the fundamental issue presented by the appeal of Plaintiff/Appellant, Thomas D. Prevish, executor of the estate of Judith A. Bills, from the order of the Court of Common Pleas of Venango County sustaining the preliminary objections of Defendants/Appellees, Northwest Medical Center-Oil city Campus ("Northwest") and Robert M. Pilewski, M.D., and striking the complaint.

Appellant urges us to find that either the "relation back" doctrine or Section 3376 of the Probate, Estates and Fiduciaries Code ("the Probate Code"), 20 Pa.C.S.A. § 3376, operates to save the present action from the bar of the statute of limitations. Appellees argue that both of Appellant's theories are unavailing. We agree, and therefore affirm.

The history of the case is as follows: From September 11, 1992, until October 15, 1992, the decedent, Judith A. Bills, was hospitalized at Northwest, where Dr. Pilewski treated her for meningitis. She died of unrelated causes on June 12, 1994.

The present action was commenced on September 8, 1994, when Appellant, through his attorney, caused a writ of summons to be filed against Appellees. The caption of the writ identified the plaintiff as "Estate of Judith A. Bills, Deceased."

On November 18, 1994, Appellant filed a complaint, having been ruled to do so by Appellees. The caption of the complaint identified the plaintiff as "Thomas D. Prevish, Executor of the Estate of Judith A. Bills, Deceased." In the complaint it was averred that Appellant had been appointed executor on November 15, 1994. The gravamen of the complaint, which was brought pursuant to the Survival Act, 42 Pa.C.S.A. § 8302, was that Appellees' allegedly negligent treatment of Mrs. Bills had caused her to suffer a stroke and paralysis which could have been prevented. The complaint sought damages for the medical expenses and pain and suffering that Mrs. Bills had sustained while she lived.

Both Appellees filed preliminary objections in response to the complaint. Northwest asserted in its "Preliminary Objections/Motion to Strike" that Appellant, by amending the caption of his pleading to correct the name of a party without having obtained either the consent of opposing counsel or leave of the court, had violated Pa.R.C.P. No. 1033. Rule 1033 provides in pertinent part that

[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.

Northwest asked the court to strike the complaint pursuant to Pa.R.C.P. No. 1028 "since it does not conform to law." In his answer Appellant argued that the correction of the plaintiff's name in the caption without consent of counsel or leave of court did not require dismissal of the action.

The preliminary objections filed by Dr. Pilewski were more detailed, asserting in pertinent part the following:

4. In a survival action pursuant to A. § 8302, the statute of limitations begins to run on the date of injury. If a period of two years has expired following the date of injury, an action for such injury is barred and cannot be asserted by the personal representatives of the injured person following his death. Baumgart v. Keene Building Products Corp., 430 Pa. Super. 162, 633 A.2d 1189 (1993).

5. Defendant seeks a Motion to Strike plaintiff's Complaint in its entirety as the defect of suing in the name of the estate of a decedent rather than in the name of the personal representative thereof may not be amended after the running of the statute of limitations on the cause of action, since it would constitute the introduction of a new party. 21 Standard Pennsylvania Practice 2d § 115:7; Mallick v. Middletown Township, 60 Pa. D. C.2d 79 (1972).

6. Defendant seeks a Motion to Strike plaintiff's Complaint in its entirety as the caption amendements [sic] in the Complaint is in direct violation of Pennsylvania Rule of Civil Procedure 1033. When a party amends a pleading without first seeking consent of opposing counsel or leave of court, the proper form of objection is a Motion to Strike. Mackey v. Adamski, 286 Pa. Super. 456, 429 A.2d 28 (1981); Rang v. Allentown Women's Center, 5 Pa. D. C.4th 157 (1989).

Dr. Pilewski asked the court to grant the preliminary objections and dismiss the complaint in its entirety.

In response Appellant filed an answer in which he asserted, first, that "under the doctrine of relation back, an amendment designating the personal representative as plaintiff after the running of the Statute of Limitations, does not constitute the introduction of a new party"; and, second, that "an amendment adding the name of the personal representative to a timely filed survival action is not in violation of [Rule] 1033."

On March 20, 1995, after oral argument, the trial court entered an order sustaining Appellees' preliminary objections and granting the motion to strike the complaint. In an accompanying opinion, the trial court observed that Rule 1033 required a party to seek either consent of opposing counsel or leave of court before amending the caption on a pleading, that Appellant had amended the caption of his complaint without seeking either consent of counsel or leave of court, and that the proper form of objection to Appellant's conduct was a motion to strike. The court then proceeded as follows:

Based on [Appellant's] Complaint, the last possible date of injury was October 15, 1992. [Appellant's] Writ of Summons was thus filed before the expiration of the two year statute of limitations, but the Complaint was filed after the expiration of the statute. The paramount issue is thus whether [Appellant's] caption amendment in the Complaint is permissible pursuant to Rule 1033.

In other words, the court undertook to determine whether leave to amend should be granted retroactively. Relying on a Bucks County case, Mallick v. Middletown Township, 60 Pa. D. C.2d 79 (1972), the court concluded that it should not:

The Writ of Summons, captioned "Estate of Judith A. Bills, Deceased", was filed before the expiration of the two year statute of limitations on October 15, 1994. [Appellant's] Complaint, with Thomas D. Prevish named as the executor of the Estate of Judith A. Bills, was filed on November 15, 1994, after the expiration of the two year statute of limitations. As an estate has no capacity to sue and a personal representative was not designated until after the expiration of the statute of limitations, [Appellant] may not now amend the Complaint.

Opinion, March 20, 1996, at 4 (emphasis in original). The court found no merit in Appellant's relation back argument, concluding that the case law cited by Appellant was distinguishable.

On March 28, 1995, Appellant filed a notice of appeal to the Superior Court from the order striking the complaint. On April 5, 1995, he filed with the trial court an "application for reconsideration of order of March 20, 1995 and motion to amend pursuant to [Rule] 1033." Appellant asked the trial court to grant reconsideration of the order, as it was empowered to do under Pa.R.AP. 1701 (b), and to acknowledge that the statute of limitations on the survival action had been extended by Section 3376 of the Probate Code until the end of one year following Mrs. Bills' death. Both Appellees filed responses opposing reconsideration, and the trial court took no action on Appellant's application.

In response to the court's directive of March 28, 1995, Appellant filed a statement of matters complained of on appeal. In the statement he included not only his claims based on the relation back doctrine and on Section 3376, but also a claim that the statute of limitations had yet to expire owing to the "discovery rule."

A panel of this Court reversed the trial court's order, finding that Section 3376 of the Probate Code extended the applicable statute of limitation. Reargument was granted before the Court en banc.

We turn now to the merits of the issues raised, in the alternative, by Appellant. First, Appellant argues that the trial court erred in failing to recognize that under the discovery rule there exists an issue of fact as to when the statute of limitations began to run on the survival action. Second, Appellant contends that the trial court erred in failing to recognize that in fact the statute of limitations had not expired by the time the complaint was filed because Section 3376 of the Probate Code operated to extend the statute until one year after the decedent's death. Finally, Appellant argues that even if the statute had expired before the complaint was filed, the trial court erred in refusing to apply the "relation back" doctrine to permit the amendment of the caption.

In considering these issues, we are mindful that

preliminary objections which result in the dismissal of a cause of action should be sustained only in cases that are [so] `clear and free from doubt' that the plaintiff will be unable to prove legally sufficient facts to establish any right to relief. Bower v. Bower, 531 Pa. 54, 57, 611 A.2d 181, 182 (1992). All doubts in this determination should be resolved by overruling the preliminary objections. National Check v. First Fidelity Bank, 442 Pa. Super. 211, 214, 658 A.2d 1375, 1377 (1995).

Chiropractic Nutritional Associates, Inc. v. Empire Blue Cross and Blue Shield, 447 Pa. Super. 436, 453, 669 A.2d 975, 984 (1995).

Appellant's first issue concerns the "discovery rule," which provides that where a plaintiff does not know of the existence of an injury and cannot reasonably be expected to learn of its existence within the period prescribed by statute, the limitations period does not begin to run until discovery of the injury becomes reasonably possible. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d 1040 (1992). "Whether the statute [of limitations] has run on a claim is usually a question of law for the trial judge, but where the issue involves a factual determination, the determination is for the jury." Id, 530 Pa. at 325, 608 A.2d at 1043. According to Appellant, the trial court "either overlooked or refused to consider" the application of the discovery rule to the survival action.

Both Appellees argue vigorously that Appellant has waived the issue of the discovery rule by failing to raise the issue in the trial court. We agree. A plaintiff who wishes to assert the discovery rule may do so in one of two ways: 1) by pleading in the complaint sufficient facts to sustain application of the rule; or 2) by waiting until the defendant asserts a statute of limitations defense in new matter and then raising the discovery rule in a responsive pleading. Fox v. Byrne, 363 Pa. Super. 70, 525 A.2d 428 (1987).

Appellant did not pursue either course. Nowhere in Appellant's complaint is it suggested that there exists a question of fact as to when Appellant should reasonably have been aware of the decedent's injury. Although neither Appellee explicitly asserted a statute of limitations defense as new matter, Appellant did not argue that Appellees there by waived the issue. See, Note to Pa.R.C.P. No. 1028 (a)(2)-(4) (excluding, as grounds for preliminary objection, bar of statute of limitations; such defense can be asserted only in a responsive pleading as new matter under Rule 1030); Pa.R.C.P. No. 1030 (a) (affirmative defenses, including statute of limitations, shall be pleaded in responsive pleading as new matter). The statute of limitations issue was implicitly introduced into this case in the preliminary objections filed by Dr. Pilewski. In his answer to those preliminary objections, Appellant did not aver that there was a question of fact as to when the statute began to run. To the contrary, he denied "that a timely filed survival action initiated in the name of the Estate of the decedent may not be amended after the running of the Statute of Limitations to designate the name of a subsequently appointed personal representative" (emphasis added). Not until the filing of his statement of matters complained of on appeal did Appellant assert that the discovery rule applied to the present case. Raising this claim at that point did not preserve it for appeal. Commercial Credit Corporation v. Cacciatiore, 343 Pa. Super. 430, 495 A.2d 540 (1985). Therefore, we conclude that the issue has been waived.

Next, Appellant argues that Section 3376 of the Probate Code operated to extend the statute of limitation applicable to the present action. Section 3376 reads as follows:

Any statute of limitation which would bar any debt or liability owed the estate of a decedent within one year after the decedent's death shall be extended until the end of one year following the decedent's death. Failure or delay in taking out letters testamentary or of administration shall not affect the operation of any statute of limitations applicable to a debt or liability owed the estate of a decedent.

20 Pa.C.S.A. § 3376. According to Appellant, the survival action filed on behalf of the decedent's estate constitutes a "debt or liability owed the estate of [the] decedent. . . ." Therefore, Appellant argues, the statute of limitations applicable to the action was extended by operation of Section 3376 "until the end of one year following the decedent's death" — that is, until June 12, 1995, some seven months after the complaint was filed in the name of Appellant as executor of the estate. Under Appellant's theory, questions concerning the amendment of the caption are irrelevant, since the action would have been commenced not by the improperly captioned writ of summons, but by the properly captioned (and timely filed) complaint.

Does the present action constitute a "debt or liability owed the estate of a decedent" within the meaning of Section 3376? This is a question of first impression, as our research has uncovered no case that has addressed the issue.

Accordingly, we turn for guidance to the settled principles of statutory interpretation. When we seek to determine the meaning of statutory language, our fundamental object is to ascertain and effectuate the legislative intent behind the statute. 1 Pa.C.S.A. § 1921 (a); Zimmerman v. O'Bannon, 497 Pa. 551, 442 A.2d 674 (1982); Freeze v. Donegal Mutual Insurance Company, 412 Pa. Super. 305, 603 A.2d 595, appeal denied, 532 Pa. 656, 615 A.2d 1312 (1992); Walker v. Roney, 407 Pa. Super. 620, 595 A.2d 1318 (1991), appeal denied, 529 Pa. 658, 604 A.2d 250 (1992). Thus, when the statutory language is clear and free from ambiguity, we are not at liberty to disregard the letter of the language under the pretext of pursuing its spirit. 1 Pa.C.S.A. § 1921 (b); Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989); Zimmerman, supra. When the words of the statute are not explicit, we may consider, inter alia, the factors set forth at 1 Pa.C.S.A. § 1921 (c)(1)-(8). Coretsky supra; Freeze, supra. These include the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied and the object to be attained, the consequences of a particular interpretation, and the contemporaneous legislative history. In addition, the legislature itself has specified certain presumptions to be used in ascertaining its intent, one of which is the presumption that it "does not intend a result that is absurd, impossible of execution or unreasonable." 1 Pa.C.S.A. § 1922 (1). It is fundamental to our effort that the words and phrases of a statute be construed according to their common meaning and accepted usage. 1 Pa.C.S.A. § 1903 (a); Key Savings and Loan Association v. Louis John, Inc., 379 Pa. Super. 226, 549 A.2d 988 (1988), appeal dismissed, 529 Pa. 573, 605 A.2d 1223 (1992).

Before considering the meaning of the terms "debt" and "liability," it is essential that we understand the precise nature of the action at issue. A survival action has its origin in an injury to the decedent, and the damages sought are those for the pain and suffering experienced by the decedent between the time of injury and his or her death. Moyer v. Rubright, 438 Pa. Super. 154, 651 A.2d 1139 (1994), appeal denied, 540 Pa. 649, 659 A.2d 988 (1995). In other words, it is the personal injury action, brought by the decedent's estate in the person of its executor or administrator, which would have been brought by the decedent had he or she lived.

As a general rule, a personal injury tort claim remains unliquidated until it is reduced to a definite amount by a verdict or a settlement. Hurley v. Hurley, 342 Pa. Super. 156, 492 A.2d 439 (1985). Given the procedural posture of the present case, therefore, the question before us is whether an unliquidated personal injury tort claim is a debt or liability owed to a decedent's estate within the meaning of Section 3376.

Section 3376 does not define the words "debt" or "liability," nor does the definitional provision of the Probate Code, 20 Pa.C.S.A. § 102. The general definitional provision of the Pennsylvania Consolidated statutes, 1 Pa.C.S.A. § 1991, defines "[d]ebtor" as "[o]ne who owes to another the performance of an obligation." By inference, therefore, a debt is an obligation the performance of which is owed to another. Section 1991 of Title 1 does not define "liability," however.

To support his argument that the term "liabilities" encompasses the present action, Appellant sets forth the following excerpt from the definition of "liability" offered in Black's Law Dictionary:

The word is a broad legal term . . . referred to as of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely . . .; an obligation which may or may not ripen into a debt[.]

Black's Law Dictionary, 823 (5th ed., 1979). In fact, the definition includes language that is even more favorable to Appellant's argument:

condition of being actually or potentially subject to an obligation; condition of being responsible for a possible or actual loss, penalty, evil, expense, or burden; . . . every kind of legal obligation, responsibility, or duty; . . . responsibility for torts; . . . unliquidated claim.

Id. (citations omitted).

The pertinent question, however, is whether the law of this Commonwealth lends itself to such an expansive definition of "liability." There is little discussion of the term in our case law. In McCullough v. National Bank of Union City, 127 Pa. Super. 452, 193 A. 65 (1937), the Superior Court observed that

"[l]iability" is defined in Black's Law Dictionary to be legal responsibility; in Webster, as the state of being bound or obliged in law or justice; and in Bouvier's Law Dictionary as the state of one who is bound in law and justice to do something which may be enforced by action.

Id., 127 Pa.Super. at 457, 193 A. at 66. The Supreme Court has noted that "liabilities" is a broader term than "debts" and has been held to include an employee's right to reinstatement after wrongful discharge. McCandless Township v. Wylie, 375 Pa. 378, 100 A.2d 590 (1953), citing National Labor Relations Board v. Universal Camera Corporation, 179 F.2d 749 (2d Cir. 1950). See also, Chiropractic, supra (under Pennsylvania law, an unliquidated personal injury tort claim is not a property right and is not assignable); DeMasi v. DeMasi, 366 Pa. Super. 19, 530 A.2d 871 (1987) (same), appeal denied, 517 Pa. 631, 539 A.2d 811 (1988); Hurley, supra (Pennsylvania courts have been reluctant to attach complete panoply of property rights to unliquidated personal injury tort claim).

Although there is no legislative history to guide us, the Official Comment to 20 Pa.C.S.A. § 3376 explains that the amendment of Section 3376 (i.e., the addition of the provision at issue here) was suggested by Section 3-109 of the Uniform Probate Code and serves to extend "the statutes of limitation are extended on claims against the estate under Section 3383." Appellant asserts that both Section 3-109 of the Uniform Probate Code and Section 3383 of Title 20 support its interpretation of "any debt or liability."

Section 3-109 of the Uniform Probate Code states in pertinent part that

[n]o statute of limitation running on a cause of action belonging to a decedent which had not been barred as of the date of his death, shall apply to bar a cause of action surviving the decedent's death sooner than four months after death.

Uniform Probate Code § 3-109 (emphasis added). Similarly, Section 3383 provides in pertinent part that

[t]he death of a person shall not stop the running of the statute of limitations applicable to any claim against him, but a claim which otherwise would be barred within one year after the death of the decedent shall not be barred until the expiration of one year after his death.

20 Pa.C.S.A. § 3383 (emphasis added).

Although the General Assembly looked to both of these statutes when amending Section 3376, it did not utilize the pertinent language of either. Section 3376 as amended does not refer to a "cause of action" or a "claim", but to a "debt or liability." Where one section of a statute contains a particular provision, the omission of such a provision from a similar section is significant to show a different legislative intent for the two sections. Walker, supra, citing Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979), quoting Novicki v. O'Mara, 280 Pa. 411, 124 A. 672 (1924) ("A change of language in separate provisions of a statute is prima facie evidence of a change of intent").

In the present case, therefore, the choice of the phrase "debt or liability" and the ommision of the terms "claim" and "cause of action." If the drafters had intended to extend statutes of limitation which would otherwise bar not only any debt or liability owed the estate of a decedent but also any cause of action or unliquidated claim belonging to the estate of a decedent, they could easily have said so. Because they did not, we conclude that Section 3376 does not apply to extend the statute of limitation in this case.

Finally, we consider whether, as Appellant asserts, the trial court erred in failing to apply the "relation back" doctrine to permit the amendment of the caption.

It is settled law that a decedent's estate cannot be a party to litigation unless a personal representative exists. Estate of Gasbarini v. Medical Center of Beaver County, 487 Pa. 266, 409 A.2d 343 (1979); Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659 (1978); McGuire v. Erie Lackawanna Railway Company, 253 Pa. Super. 531, 385 A.2d 466 (1978); Lovejoy v. Georgeff, 224 Pa. Super. 206, 303 A.2d 501 (1973); Wilkes-Barre General Hospital v. Lesho, 62 Pa. Commw. 222, 435 A.2d 1340 (1981). Stated differently, all actions that survive a decedent must be brought by or against the personal representative of the decedent's estate. D'Orazio, supra; Lesho, supra.

The practical significance of this principle was explained by the Supreme Court some sixty years ago:

It is fundamental that an action at law requires a person or entity which has the right to bring the action, and a person or entity against which the action can be maintained. By its very terms, an action at law implies the existence of legal parties; they may be natural or artificial persons, but they must be entities which the law recognizes as competent. A dead man cannot be a party to an action, and any such attempted proceeding is completely void and of no effect. This disposes of the further argument that the defect [can be] cured by [an] amendment. There can be no amendment where there is nothing to amend. In any event, an amendment the effect of which is to bring in new parties after the running of the statute of limitations will not be permitted.

Thompson v. Peck, 320 Pa. 27, 30, 181 A. 597, 598 (1935) (citations omitted), quoted in Marzella, supra, 256 Pa.Super. at 182, 389 A.2d at 661. As with a dead man, so with an estate lacking a personal representative: an action brought by or against such an estate is void, and a subsequent attempt to "amend" the caption to specify the correct party is in fact the addition of a new party, which addition will not be permitted after the statute of limitations has expired. Marzella, supra.

In the present case, Appellant argues that the trial court erred in finding that he had attempted to amend the caption of the complaint to add a new party after the statute of limitations had run. Appellant contends that "[i]n accordance with the doctrine of `relation back,' the appointment of the executor of the decedent's estate related back to the date on which suit was commenced within the statute of limitations[,] and [Appellant's] correction of the caption to reflect the executor's formal appointment is allowable under [Rule] 1033 since a new party has not been added."

"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." Lesho, 62 Pa.Cmmw. at 225, 435 A.2d at 1342. 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. Gasbarini, supra, McGuire, supra, D'Orazio, supra, Lesho, supra.

Appellant relies on the cases just cited to support his claim to application of the relation back doctrine. We agree with the trial court, however, that Appellant's reliance is misplaced, as the cited cases are distinguishable.

In McGuire, the earliest of the cases, the plaintiff petitioned to be appointed administrator of the estate of his teenage daughter, who had died of injuries sustained when she was struck at a railroad crossing by an Erie Lackawanna freight train. Although the plaintiff paid the filing fee, he was not issued letters of administration because he had not posted bond. On the day before the limitations period expired, the plaintiff commenced a survival action by filing a complaint in which he averred that he was the administrator of his daughter's estate. It was not until three weeks later, however, that the plaintiff posted the necessary bond and was issued letters of administration. The defendant railroad asserted a statute of limitations defense in its answer and new matter and in a motion for summary judgment. The trial court denied summary judgment and certified its order to the Superior Court as involving a controlling question of law.

The Superior Court held that the plaintiff's actions had been sufficient to fulfill the purposes of the statute of limitations (namely, "to expedite litigation and thus to discourage delay and the presentation of stale claims[,]" id., 253 Pa.Super. at 535, 385 A.2d at 468), within the statutory period.

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, appellee had applied for letters of administration. . . . Appellee's appointment as administrator was substantially assured at the time the complaint was filed, that is, within the statutory period of limitations.

Id., 253 Pa.Super. at 535-36, 385 A.2d at 468. The Superior Court contrasted the case before it with the earlier case of Lovejoy, supra in which a plaintiff had timely filed a writ of summons on behalf of his injured son against the father of a deceased driver as "administrator" of the driver's estate. Although the plaintiff had applied for the issuance of letters of administration for the estate, letters had not yet been issued when the plaintiff filed the writ of summons; it was not until after the statute of limitations had run that the decedent's father was appointed administrator. The McGuire court noted that in Lovejoy,

when the [writ of summons] was filed, the identity of the administrator was uncertain; either parent could have renounced the right to letters and the other accepted, or both could have renounced. . . . 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.

McGuire, 253 Pa.Super. at 537, 385 A.2d at 469 (footnote omitted). The McGuire court reasoned that it was such instability which proved fatal to application of the relation back doctrine in Lovejoy. In McGuire, by contrast,

the defendant railroad could "proceed on the presumption that" appellee's appointment as plaintiff-administrator would be completed. Given this fact, the relationship between the parties was not affected with the sort of instability that statutes of limitations seek to preclude.

Id., 253 Pa.Super. at 536, 385 A.2d at 468-69, quoting Beckman v. Owens, 135 Pa. Super. 404, 408, 5 A.2d 626, 627 (1939). Accordingly, the Superior Court applied the doctrine of relation back "so that the action of appellee in instituting this suit within the limitation period but prior to his appointment may be validated by his appointment after the period." Id., 253 Pa.Super. at 533 34, 385 A.2d at 467.

The Superior Court reached the same result on similar facts in D'Orazio, supra. That case arose from the drowning death on July 8, 1973, of a nine-year-old child in a lake on the defendants' property. On June 11, 1974, a writ of summons was issued in the name of the child's mother, "Theresa D'Orazio, Trustee, ad litem," as plaintiff. The plaintiff-mother filed a petition for letters of administration one month later. On October 24, 1974, she filed a complaint naming herself, "Administratrix of the Estate of Patrick L. Lawler, Deceased," as plaintiff. Because she had obtained the required bond and paid bond premiums for several years, the plaintiff assumed that letters of administration had been issued to her. Unbeknownst to her, however, letters had not been issued because she had failed to execute the bond. The plaintiff's counsel eventually learned of the omission, the plaintiff signed the bond on January 11, 1977, and letters of administration were issued to her. The defendants raised a statute of limitations defense, and the trial court, refusing to apply the relation back doctrine, granted the defendants' motion for summary judgment.

On appeal, the Superior Court concluded that the case was controlled by McGuire, supra.

Although appellant here was finally granted letters much longer after the statute's running than was Mr. 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 appellant'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."

Id., 267 Pa.Super. at 129, 406 A.2d at 552, quoting McGuire, 253 Pa.Super. at 535, 385 A.2d at 468. Accordingly, the Superior Court, applying the doctrine of relation back, reversed the order of summary judgment and remanded for further proceedings.

The Supreme Court addressed the relation back doctrine in Gasibarini, supra. The decedent in that case had died on June 26, 1973, while a patient in the defendant hospital under the care of the defendant physicians. His widow promptly applied for letters of administration but was not issued them because her counsel failed to post bond. On September 26, 1973, counsel commenced an action in trespass by writ of summons identifying the plaintiff as "Estate of Gabriel C. Gasbarini." When counsel failed to respond to the defendant hospital's rule to file a complaint, a judgment of non pros was entered.

Counsel filed a second summons on June 20, 1974, again naming the estate as plaintiff. This was followed on November 15, 1974, by a complaint which named the estate as plaintiff in the caption and which asserted wrongful death and survival actions. The defendants filed preliminary objections alleging that the estate was not a proper party. Counsel did not respond to the preliminary objections; he was subsequently suspended from the practice of law and then disbarred. On January 31, 1975, the trial court sustained the preliminary objections and dismissed the complaint.

In July 1975 the plaintiff was able to secure new counsel she posted bond, was named administratrix of the estate, and petitioned to reinstate the complaint and to amend its caption. On January 29, 1976, the trial court ordered that its judgment in favor of the defendants be opened and that the plaintiff be granted leave to file an amended complaint. The Superior Court reversed the trial court, and the plaintiff appealed to the Supreme Court.

With regard to the defendants' argument that permitting the plaintiff to amend the complaint would improperly add a new party to the proceedings, the Supreme Court reasoned as follows:

In the instant case, appellant had taken all necessary steps to be appointed administratix of decedent's estate except posting the required bond, and this omission was clearly the fault of [counsel]. Further, paragraph 9 of the complaint in trespass alleged: "Plaintiff is the widow and was duly appointed administratrix of [the decedent's] estate by the Register of Wills of Beaver County, Pennsylvania. . . ." It is clear that allowing amendment of the caption in no way adds a new party to the suit.

Id., 487 Pa. at 271-72, 409 A.2d at 346 (citation omitted). The Court also found no merit in the defendants' argument that amendment of the complaint would deprive them of a meritorious statute of limitations defense.

The original complaint . . . made clear that the action was based upon our wrongful death and survival statutes. Further, as previously mentioned, the complaint made clear that appellant 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 appellant's complaint was the fact she had not yet been named administratrix of decedent's estate. All other requirements, 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., 487 Pa. at 272-73, 409 A.2d at 346-47. Accordingly, the Supreme Court reversed the order of the Superior Court and reinstated the order of the trial court.

In Lesho, supra, the relation back issue arose in the context of proceedings before the Arbitration Panels for Health Care. The plaintiffs, whose daughter had died allegedly as the result of medical malpractice, filed a complaint identifying themselves in the caption and body of the complaint as administrators of the decedent's estate. In fact, however, they did not apply for and were not granted letters of administration until after the statute of limitations had expired. The defendants moved for summary judgment on that basis. Their motion was denied by the Administration of the Arbitration Panels for Health Care, who ruled that the relation back doctrine applied. His order was certified as involving a controlling question of law, and the Commonwealth Court allowed the defendants to take and an interlocutory appeal from that order.

On appeal, the defendants argued that there was a critical difference between McGuire and its progeny and the case in which they were involved: "in each of those cases the adminstrator had at least applied for letters before that statute ran and there was a substantial assurance that the letters would be granted to the person alleging his or her fiduciary capacity in the pleading." Id., 62 Pa. Commw. at 226, 435 A.2d at 1342 (emphasis supplied in original). Nevertheless, the Commonwealth Court affirmed, concluding that the reasoning of McGuire and Gasbarini was applicable to the case before it.

Absolutely nothing was changed in the Leshos' 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 Petitioners 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 [wrongful death and survival] against the Petitioners was set forth in the complaint, including the erroneous fact the Leshos had been appointed administrators of their daughter's estate. . . . At the very least, the fact that both parents had been petitioners in that proceeding would discount the possibility of a renunciation by one of them, such as occurred in Lovejoy, supra.

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 results 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., 62 Pa. Commw. at 228, 435 A.2d at 1343.

Appellant contends that he too is entitled to the benefit of the relation back doctrine because, as in McGuire and its progeny, "[a]bsolutely nothing was changed in the present action by virtue of the executer being formally appointed after the statute [of limitations] had expired." We disagree.

In McGuire, D'Orazio, and Lesho, as 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 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.

That is not true in the present case. The 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 executer of the estate, nor does it inform the defendants that there is, even potentially, an executer (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.

Appellant 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.

Order affirmed.

SCHILLER, J., files a concurring opinion.

CIRILLO, P.J.E., files a dissenting opinion which is joined by KELLY, J.

FORD ELLIOTT, J., files a dissenting opinion.