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Note - It’s Time to Nullify Pennsylvania’s Nullity Rule: Overruling Thompson v. Peck


When a plaintiff sues someone in Pennsylvania who has already died, she cannot amend her complaint to substitute the decedent’s personal representative as defendant. Her only recourse is to file an entirely new complaint against the personal representative. What if a plaintiff mistakenly sues someone who she does not know has died, and after a court denies her motion to amend her complaint, the statute of limitations for an action against the decedent’s personal representative has expired? Surprisingly, this happens more often than one might think, and the harsh but straightforward answer is that the plaintiff is out of luck. An eighty-four-year-old judge-made rule, known as the “nullity rule,” has the power to subject plaintiffs in Pennsylvania to significant hardship based on a legal fiction—that the original complaint is null and void and therefore cannot be amended. Pennsylvania needs to do away with this arbitrary rule and permit a plaintiff who commences an action against a deceased person to amend her complaint, subject to the rule of civil procedure governing amendment of pleadings. The nullity rule lacks any true foundation, and it prioritizes adherence to technicalities over the adjudication of cases on the merits. There is no sense in promoting rigidity for the sake of rigidity. This Note details why and how the nullity rule must be eliminated. It sheds light on a gap in our system of justice that perhaps goes unnoticed by many, but that devastates those whom it affects.