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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BETTIE MOORE, ALEXANDER MOORE, : IN THE SUPERIOR COURT OF
AND EDNA NORTHCUTT : PENNSYLVANIA
:
APPELLANTS :
:
:
:
v. :
:
:
: No. 2903 EDA 2015
BRENDAN GILLIGAN :
:
Appeal from the Order August 17, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2013-8848
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 19, 2016
Appellants, Bettie Moore, Alexander Moore, and Edna Northcutt,
appeal from the August 17, 2015 Order entered in the Delaware County
Court of Common Pleas granting the Motion for Summary Judgment filed by
Appellee, Brendan Gilligan. After careful review, we affirm.
The trial court recounted the facts and procedural history as follows:
On September 17, 2011, Appellants Bettie Moore
(“Moore”) and Edna Northcutt (“Northcutt”) were involved
in a motor vehicle accident at the intersection of
Springfield Road and Saxer Road, Springfield Township,
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Delaware County, Pennsylvania.[1] Appellants allege that
they were struck from behind while stopped at a red light.
Moore and Northcutt were transported from the scene of
the accident to the hospital by ambulance. The collision
was witnessed and reported by Springfield Police.
Appellants filed their initial Complaint on September 9,
2013[, eight days before the expiration of the statute of
limitations for filing a Complaint,] alleging negligence on
the part of [Appellee] Brendan Gilligan as the operator of
the striking vehicle. Since the filing of the initial
Complaint, Appellants have not amended the Complaint to
add or substitute any additional parties as defendants nor
have they sought leave to do so. Appellants have not
alleged negligent entrustment on the part of Appellee nor
have they alleged any form of agency.
***
The parties exchanged interrogatories to which Appellee
replied on January 7, 2014. Appellee’s verified answers
stated that his niece Ashley Jest (hereinafter “Jest”) was
the driver involved in the incident and that he had no
personal involvement in the incident. At the time of the
accident, Jest was seventeen years old, a minor, and was
insured on Gilligan’s policy. The vehicle was registered in
the name of her aunt, Appellee’s wife, Debra Gilligan.
Appellants failed to respond to Appellee’s discovery
requests.
On May 28, 2015, Appellee filed a Motion for Summary
Judgment. [On July 13, 2015, Appellants filed an Answer
to Appellee’s Motion for Summary Judgment and a
Countermotion for Partial Summary Judgment on the
question of the identity of the driver of the striking
vehicle.] . . . This [c]ourt determined that there were no
genuine issues of material fact with regard to the identity
of the driver of the striking vehicle and thus [on August
17, 2015,] entered summary judgment in favor of the
1
Appellant Alexander Moore is Bettie Moore’s husband. He was not involved
in the accident, but filed a loss of consortium claim against Appellee.
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Appellee/Defendant[, and denied Appellants’
Countermotion for Partial Summary Judgment].
Trial Ct. Op., 12/10/15, at 2-4 (citations omitted).
On August 24, 2015, Appellants filed a Motion for Reconsideration of
the trial court’s Order granting Appellee’s Motion for Summary Judgment,
which the trial court denied. On September 15, 2015, Appellants timely
appealed from the trial court’s August 17, 2015 Order. Both Appellants and
the trial court complied with Pa.R.A.P. 1925.
Appellants raise the following four issues on appeal:
1. Did the trial court err in granting summary judgment to
[Appellee] solely on the basis of the testimonial written
statements of [Appellee] and the investigating police?
2. Should [Appellee’s] [Motion for Summary Judgment]
have been denied where the [M]otion was based solely
upon the claim that [Appellee] was not operating the
striking vehicle and where [Appellee] admitted to being the
driver in the pleadings?
3. Should [Appellants] have been granted partial summary
judgment in their favor on the issue of the identity of the
driver of the striking vehicle where [Appellee] admitted to
being the driver in his [A]nswer to the [C]omplaint?
4. Should [Appellants] have been permitted to amend
their [C]omplaint to designate Ashley Jest as the operator
of the vehicle that struck [Appellants], where the identity
of this purported operator was actively concealed from
[Appellants] and it was suggested that the vehicle was
operated by [Appellee]?
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Appellants’ Brief at 3.2
Appellants’ first three issues on appeal challenge the trial court’s
decision to enter summary judgment in favor of Appellee. We review a
grant of summary judgment under the following well-settled standards:
Pennsylvania law provides that summary judgment may be
granted only in those cases in which the record clearly
shows that no genuine issues of material fact exist and
that the moving party is entitled to judgment as a matter
of law. The moving party has the burden of proving that
no genuine issues of material fact exist. In determining
whether to grant summary judgment, the trial court must
view the record in the light most favorable to the non-
moving party and must resolve all doubts as to the
existence of a genuine issue of material fact against the
moving party. Thus, summary judgment is proper only
when the uncontraverted allegations in the pleadings,
depositions, answers to interrogatories, admissions of
record, and submitted affidavits demonstrate that no
genuine issue of material fact exists, and that the moving
party is entitled to judgment as a matter of law. In sum,
only when the facts are so clear that reasonable minds
cannot differ, may a trial court properly enter summary
judgment.
On appeal from a grant of summary judgment, we must
examine the record in a light most favorable to the non-
moving party. With regard to questions of law, an
appellate court's scope of review is plenary. The Superior
Court will reverse a grant of summary judgment only if the
trial court has committed an error of law or abused its
2
We note at the outset that Appellants’ Brief does not comply with the Rules
of Appellate Procedure. Although Appellants presented five issues for this
Court’s review, Appellant’s brief only contains one argument, in violation of
Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of each part[ ] the
particular point treated therein”). Despite this briefing deficiency, we decline
to find Appellant’s issues waived as they address each of their issues in their
Brief.
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discretion. Judicial discretion requires action in conformity
with law based on the facts and circumstances before the
trial court after hearing and consideration.
Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008)
(citation and quotation omitted).
Appellants claim in their first issue that the trial court erred in granting
summary judgment in favor of Appellee because Appellee supported his
Motion only with his responses to Appellant’s discovery requests and the
police report of the accident. Appellant’s Brief at 8. Relying on the Nanty-
Glo3 rule, Appellants argue that, even if uncontradicted, these documents
cannot support the grant of summary relief. Appellants characterize
Appellee’s discovery answers and the police report upon which Appellee
relied as “[un]trustworthy [in] nature, as they are mere self-serving
declarations that have not been tested by adverse interrogation in the
presence of a jury.” Id. at 9. Appellants also claim that, pursuant to 75
Pa.C.S. § 3751, the police report is inadmissible for any purpose. Id. We
conclude this issue is waived.
Our review of Appellants’ Answer to Appellee’s Motion for Summary
Judgment reveals that Appellants failed to timely raise this issue. See
3
Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932). The Nanty-
Glo rule generally requires the party moving for summary judgment to
present more than testimonial affidavits or depositions to establish the
absence of a genuine issue of material fact, because such items necessitate
credibility determinations by a jury. Krentz v. Consolidated Rail Corp.,
910 A.2d 20, 36-37 (Pa. 2006).
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[Appellants’] Ans. to [Appellee’s] Mot. for Summ. J., 7/13/15. It appears
that Appellants raised this issue for the first time in their August 24, 2015
Motion for Reconsideration. See Mot. for Recons., 8/24/15, at ¶ 16. This
Court has held, “a non-moving party’s failure to raise grounds for relief in
the trial court as a basis upon which to deny summary judgment waives
those grounds on appeal.” Devine v. Hutt, 863 A.2d 1160, 1169 (Pa.
Super. 2004); see also Rabatin v. Allied Glove Corp., 24 A.3d 388, 391
(Pa. Super. 2011) (holding issues raised in a motion for reconsideration filed
after entry of summary judgment are “beyond the jurisdiction of this Court
and thus may not be considered by this Court on appeal”). This includes the
failure to raise a Nanty-Glo issue. Lineberger v. Wyeth, 894 A.2d 141,
149 (Pa. Super. 2006). Accordingly, Appellants are not entitled to relief.
Appellants’ second and third issues are interrelated, so we address
them together. In these issues, Appellants claim the trial court erred in
granting summary judgment in Appellee’s favor because Appellee failed to
deny the allegations in the Complaint with requisite specificity, and,
therefore, admitted that he was the driver of the striking vehicle.
Appellants’ Brief at 11-13. Appellants aver that the trial court, therefore,
should have granted partial summary judgment in their favor as to the
identity of the driver of the striking vehicle. Id. at 13.
“[T]he interpretation and application of the Pennsylvania Rules of Civil
Procedure presents a question of law.” Barrick v. Holy Spirit Hosp. of the
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Sisters of Christian Charity, 32 A.3d 800, 808 (Pa. Super. 2011) (citation
omitted). Therefore, “our standard of review is de novo, and our scope of
review is plenary.” Id.
Pa.R.C.P. 1029 governs denials in pleadings, and the effect of the
failure to deny allegations. See Pa.R.C.P. 1029. Rule 1029 provides, in
relevant part, as follows:
(c) A statement by a party that after reasonable
investigation the party is without knowledge or information
sufficient to form a belief as to the truth of an averment
shall have the effect of a denial.
Note: Reliance on subdivision (c) does not excuse a
failure to admit or deny a factual allegation when it
is clear that the pleader must know whether a
particular allegation is true or false. See Cercone v.
Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978).
***
(e) In an action seeking monetary relief for bodily injury,
death or property damage, averments in a pleading to
which a responsive pleading is required may be denied
generally except the following averments of fact which
must be denied specifically:
(1) averments relating to the identity of the person
by whom a material act was committed, the agency
or employment of such person and the ownership,
possession or control of the property or
instrumentality involved;
(2) if a pleading seeks additional relief, averments in
support of such other relief; and
(3) averments in preliminary objections.
Note: Subdivision (e) applies only to those
actions for which damages for delay may be
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awarded pursuant to Rule of Civil Procedure
238.
Pa.R.C.P. 1029(c), (e).
In Paragraph 4 of Appellants’ Complaint, Appellants alleged that
Appellee “was the operator of a motor vehicle also travelling on Springfield
Road in the same direction as [Appellants] were riding, in such a careless,
reckless and negligent manner as to cause a collision with the rear of
[Appellants’] vehicle causing property damage and severe personal injuries
to [Appellants]. Complaint, 7/9/13, at ¶ 4.
Appellee denied the averment in Paragraph 4 by stating:
DENIED. After reasonable investigation, answering
Defendant is without knowledge or information sufficient to
form a belief as to the truth of the averments contained in
the corresponding paragraph of Plaintiff’s Complaint. Said
averments are therefore denied. By way of further
answer, it is specifically denied that answering Defendant
was in any way negligent, reckless or careless. To the
contrary, answering Defendant acted reasonably and with
care. Strict proof thereof is demanded.
[Appellee’s] Answer to Complaint and New Matter, 10/24/13. At ¶ 4.
Appellants appear to argue that Paragraph 4 of their Complaint
served the sole purpose of identifying Appellee as the driver of the striking
vehicle, and, therefore, Appellee was required to deny this averment
specifically pursuant to Pa.R.C.P. 1029(e). Our review of the pleadings,
however, reveals that Paragraph 4 of the Complaint is more in the nature of
an allegation of the driver’s negligence than a statement of identity of the
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driver. Accordingly, Appellee properly answered Paragraph 4 of Appellants’
Complaint pursuant to Pa.R.C.P. 1029(c).
The note following Pa.R.C.P. 1029(c) provides an exception to the
Rule, which would prevent Appellee from claiming lack of sufficient
knowledge about his involvement in the accident had he been the driver.
Since he was completely uninvolved in the accident, the exception does not
apply. See Cercone v. Cercone, supra.
We conclude that Appellee sufficiently denied the averment set forth in
Paragraph 4 of Appellants’ Complaint, and the exception in the note to
Pa.R.C.P. 1029(c) does not act to render Appellee’s denial insufficient.
Accordingly, the trial court did not err in granting Appellee’s Motion for
Summary Judgment4 and denying Appellants’ Countermotion for Partial
Summary Judgment.
In their last issue, Appellants fault the trial court for not permitting
them to amend their Complaint to name Ashley Jest as a defendant.5 They
4
Moreover, we note that summary judgment is granted on pleadings,
answers to interrogatories, depositions, and affidavits. The evidence
presented at the summary judgment hearing demonstrated that Appellants
knew at the time they filed their Complaint that Appellee was not the driver
of the striking vehicle when the accident occurred.
5
It bears noting that Appellants never filed a Petition to Amend the
Complaint pursuant to Pa.R.C.P. 1033, with an Amended Complaint annexed
thereto. Rather, Appellants requested in their Motion for Reconsideration of
the Order granting summary judgment in favor of Appellee that Appellants
be given leave to amend their Complaint to add the name Ashley Jest as a
prospective defendant driver. See Mot. for Recons., 8/24/15, at 4.
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aver that Appellee misled them by actively concealing the true identity of the
driver of the striking vehicle. Appellant’s Brief at 14-15, 17.
Pa.R.C.P. 1033 controls the amendment of pleadings. It permits a
party, by leave of court or with consent of the adverse party, to correct the
name of a party. Pa.R.C.P. 1033.
When reviewing a trial court’s decision to permit or deny a party leave
to amend a complaint, we grant the trial court broad discretion. Diaz v.
Schultz, 841 A.2d 546, 549 (Pa. Super. 2004). “We will not disturb the
sound discretion of the trial court absent an abuse of discretion.” Id.
Generally, a plaintiff may not amend a complaint to add a new party
after the expiration of the statute of limitations. Zercher v. Coca-Cola
USA, 651 A.2d 1133, 1134 (Pa. Super. 1994). However, if the defendant
actively conceals the identity of the correct party from the plaintiff until after
the statute of limitations has run, the statute of limitations will be tolled to
permit amendment. Diaz, 841 A.2d at 549 (citing Lafferty v. The Alan
Wexler Agency, Inc., 574 A.2d 671, 674 (Pa. Super. 1990).
In support of their argument that Appellee actively concealed Ashley
Jest’s identity as the driver of the striking vehicle, and that they should be
permitted to add her as a defendant, Appellants rely on DeRugeriis v.
Brener, 348 A.2d 139 (Pa. Super. 1975) (concluding the defendant actively
concealed the identity of the driver of the striking vehicle where: (1) the
defendant and the actual driver were both in the vehicle at the time of the
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accident; (2) the defendant and the actual driver had the same last name
and were both male; (3) the parties engaged in ongoing communication
after the accident; and (4) a police report of the accident did not exist.). Id.
at 140.
In the instant matter, Appellee was not in the vehicle at the time of
the accident; Springfield police noted Ashley Jest’s identity as the driver of
the striking vehicle in its police report; Appellee and Ashley Jest have
different surnames and are different genders; no communication took place
between the parties following the accident; and Springfield police prepared a
an accident report immediately following the accident. Because the facts of
DeRugeriis are distinguishable from those in the instant matter, we find
DeRugeriis unpersuasive.
Moreover, our review of the record reveals that Appellee provided
Appellants with Ashley Jest’s identity as the driver of the striking vehicle as
early as four months after Appellants filed their Complaint. On January 17,
2014, Appellee responded to Appellants’ Interrogatories and Request for
Production of Documents. In Appellee’s response, he identified Ashley Jest
as the driver of the car that hit Appellants, and provided Appellants with a
copy of the accident report prepared by the Springfield police officers who
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responded to the accident and identified Ashley Jest as the driver. 6 See
Appellee’s Answers to Interrogs. and Req. for Produc. Of Docs., 1/17/14.
For the foregoing reasons, we agree with the trial court that Appellee
did not conceal the driver’s identity from Appellants. See Trial Ct. Op. at 10,
12-13.
Because Appellee did not conceal Ashley Jest’s identity as the driver of
the striking vehicle, Appellants’ claim that the trial court erred in not
permitting them to amend their complaint to add Ashley Jest as a party is
wholly devoid of merit. As the trial court opined,
Appellants delayed in bringing their claim only eight days
before the expiration of the statute of limitations. They
further delayed in not seeking a timely amendment to
include the proper defendant despite receiving Appellee’s
response to interrogatories nineteen months prior to this
[c]ourt’s Summary Judgment Order. Appellants have also
failed to return the favor and provide any response to
Appellee’s discovery requests. Furthermore, the identity of
the correct defendant has been readily available to
Appellants since the date of the accident in the form of the
Springfield Police Report. It has now been over four years
since the accident took place, more than two years beyond
the statute of limitations.
Trial Ct. Op. at 14.
6
Appellee also submitted the affidavit of Ashley Jest in response to
Appellants’ Motion for Reconsideration, in which Jest attested that she was
operating the vehicle that was involved in the September 17, 2011 accident.
She further attested that, immediately following the accident, she spoke face
to face with the female passengers of the vehicle she struck for
approximately fifteen minutes. See Appellee’s Resp. to Mot. for Recons. of
Order for Summ. J., 9/2/15.
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The trial court did not abuse its discretion in denying Appellants’
belated request to amend the Complaint.
In light of the foregoing, we conclude that the trial court properly
granted summary judgment in favor of Appellee.
Order affirmed. Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2016
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