J-S43041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PEGGY SUE LAPENZ AND RAYMOND F. IN THE SUPERIOR COURT OF
LAPENZ PENNSYLVANIA
Appellants
v.
DUSTIN TIFFANY A/K/A DUSTIN BRINK
AND DAVID TIFFANY AND CHERYL
TIFFANY
No. 245 WDA 2017
Appeal from the Judgment Entered January 5, 2017
In the Court of Common Pleas of Erie County
Civil Division at No(s): 2012-11716
BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: SEPTEMBER 29, 2017
Appellants, Peggy Sue Lapenz and Raymond F. Lapenz, appeal from the
judgment entered in the Erie County Court of Common Pleas after the trial
court granted summary judgment in favor of Appellees, Dustin Tiffany a/k/a
Dustin Brink and David Tiffany and Cheryl Tiffany. Appellants contend the
trial court erred when it denied the motion to amend their complaint based on
expiration of the statute of limitations. We affirm.
The trial court summarized the factual and procedural history as follows:
On June 9, 2010, Peggy Sue Lapenz [] was involved in a
car accident in Lowville Township. At the intersections of
Routes 8 and 89, [Ms. Lapenz] brought her vehicle to a stop
at a “[y]ield” sign. One of the [Appellees] is Dustin Tiffany
a/k/a Dustin Brink (“Dustin”). Dustin has a twin brother,
* Former Justice specially assigned to the Superior Court.
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Justin Brink []. On the day of the accident, purportedly[,]
Justin Brink (“Justin”) approached the intersection behind
[Ms. Lapenz]. Justin allegedly struck the rear bumper of
[Ms. Lapenz’s] vehicle causing a dent in the bumper of her
vehicle.
At the scene of the accident, [Ms. Lapenz] and Justin
exchanged identity and insurance information. The
insurance card provided by Justin listed David and Cheryl
Tiffany as the owners of the insurance policy on the vehicle.
Justin Brink told [Ms. Lapenz] his name was “Justin.” The
police were not summoned. As a result, a police report was
not filed.
[Ms. Lapenz] took notes at the scene of the accident and
wrote down Justin’s name as the driver. [Ms. Lapenz] filed
a claim for first party medical benefits with her insurer, Erie
Insurance Exchange (“Erie”).
Meanwhile, Justin told his mother and stepfather, David
and Cheryl Tiffany, about the accident. The Tiffanys were
also insured with Erie. On June 10, 2010, David Tiffany
informed his liability adjustor at Erie that Justin was
involved in an accident with [Ms. Lapenz’s] vehicle. The
Claims Management System Auto Loss Report dated
6/10/2010 states:
PAM HOLMES ADJUSTOR — JUSTIN FOLLOWING
PEGGY LAPENZ ENTERED YIELD AREA FROM RT 8
ONTO RT 89 WATTSBURG — JUSTIN THOUGHT PEGGY
PROCEEDED TO PULL ONTO RT 89 — HE LOOKED FOR
TRAFFIC — SHE HAD NOT LEFT AREA AND JUSTIN
BUMPED PEGGY’S DRIVER SIDE REAR BUMPER — NO
DAMAGE VISIBLE TO EITHER DRIVER & THEY LEFT
THE SCENE — INSD NO COLL COVERAGE THIS IS PD
ONLY. DAVE TIFFANY — XFILE PAM HOLMES.
On 6/11/2010, the liability adjustor at Erie took a
statement from Justin Brink over the phone regarding his
version of the accident. Justin’s statement was
memorialized in a Claims Management System File Note
Detail which states, in part: “ON 6-11-10 I OBT’D A R-S OF
JUSTIN BRINK OVER THE PHONE.”
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Before this lawsuit was filed, [Ms. Lapenz] had informal
contact with her first party medical adjustor at Erie, Sharon
Russell. She also had contact with Tracy Krepps, the liability
adjustor at Erie handling [Ms. Lapenz’s] claim against the
Tiffanys. [Ms. Lapenz] was able to have these contacts
because she also works at Erie albeit in a different
department.
[Ms. Lapenz] works with both a “Dustin” and a “Justin”
and sometimes confuses the two. This fact prompted her to
contact [Ms.] Russell to verify the name of the driver who
hit her. [Ms. Lapenz] was advised by [Ms.] Russell the
driver was Dustin. It is unclear how [Ms.] Russell concluded
the driver was Dustin when the information conveyed to Erie
indicated Justin was the driver.
In early April, 2012, counsel for [Ms. Lapenz] sent a letter
of representation to Erie “with regard to the injuries suffered
by Ms. Lapenz as a result of the negligence of your insured’s
son, Dustin, on June 9, 2010 . . . ”. There was no response
from Erie correcting the name of Dustin to Justin.
[Appellants] initiated this action by [w]rit of [s]ummons
on May 10, 2012. Named as defendants on the [w]rit were
[Appellees,] David Tiffany, Cheryl Tiffany, and Dustin
Tiffany, a minor. On May 29, 2012, service of these [w]rits
was effectuated, in part, by Erie County Sheriff Deputy
David Orr at the home of . . . Cheryl and David Tiffany, in
Corry, Pennsylvania. David Tiffany answered the door.
Deputy Orr advised he was serving three sealed envelopes,
one each for “David Tiffany,” “Cheryl Tiffany,” and “Dustin
Tiffany, a minor.” David Tiffany accepted possession of the
three sealed envelopes from Deputy Orr.
David Tiffany informed Deputy Orr that Dustin’s correct
name is “Dustin Brink.” [David] Tiffany also informed
Deputy Orr that Dustin Brink no longer lives in their home
and provided Dustin’s address at 1909 Abbey Lane in the
City of Erie. Deputy Orr returned the [w]rit as “[u]nserved”
upon Dustin Tiffany.
A File Note Detail in Erie’s records, entered by [Ms.]
Krepps, reflects that Erie was advised on May 30, 2012, by
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David Tiffany he had been served with [w]rits of [s]ummons
including one for Dustin Tiffany, a minor.
On June 7, 2012, [two days before the statute of
limitations for the accident expired,1 Appellants] filed an
[a]mended [w]rit of [s]ummons changing the caption to
“Dustin Tiffany a/k/a Dustin Brink, a minor.” The [w]rit was
returned as “[u]nserved” at the Erie address by the Erie
County Sheriff’s Department.
A File Note Detail in the Erie liability file states that an
amended [w]rit was filed on June 7, 2012, which incorrectly
named Dustin as the driver. The File Note Detail, Updated
Review of Writ, authored by [Ms.] Krepps states, in part:
OUR INSURED DRIVER IS JUSTIN BRINK, NOT
DUSTIN BRINK. IT APPEARS THIS WAS FILED
INCORRECTLY[.] HOWEVER, I HAVE NOT BEEN ABLE
TO SPEAK WITH CLMT ATTY TO VERIFY THIS.
On December 21, 2012, [Appellants] filed a [c]omplaint
against “Dustin Tiffany a/k/a[] Dustin Brink, David Tiffany
and Cheryl Tiffany, Defendants.”[2] There is no evidence
1The statute of limitations expired on June 9, 2012. See 42 Pa.C.S. § 5524(2)
(An action to recover damages for injuries to the person or for the death of
an individual caused by the wrongful act or neglect or unlawful violence or
negligence of another must be commenced within two years).
2 Appellees filed preliminary objections on January 3, 2013, which were
granted on March 4, 2013. Although the trial court stated that Appellees did
not file an answer, the record reveals Appellees filed an answer with new
matter on July 15, 2014, which states, in pertinent part:
The vehicle that bumped the rear of plaintiff’s car was not
being operated by defendant Dustin Brink. Rather, the
vehicle was being operated by Justin Brink, another of
defendant Cheryl Tiffany’s children.
Defendant Cheryl Tiffany is not an owner of the vehicle that
was being driven by Justin Brink at the time of the accident.
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that either Dustin or Justin have been served with the
[c]omplaint.
Trial Ct. Op., 11/6/14, at 1-4 (citations omitted).
On August 1, 2014, Appellants filed a motion to amend the complaint.
They sought to remove Cheryl Tiffany as a defendant, add Justin as a
defendant, and restate the allegations against Dustin “to reflect his potential
liability as an owner of the vehicle involved in the accident.” Appellants’ Mot.
to Am. Compl., 8/1/14, at 6. On September 30, 2014, the trial court
conducted a hearing, and on November 6, 2014, the trial court denied
Appellants’ motion because it was filed after the statute of limitations expired.
Thereafter, Appellees filed a motion for summary judgment, which was
granted on January 5, 2017.3
The vehicle that was being driven by Justin Brink was owned
by defendants David Tiffany and Dustin Brink.
Appellee’s Answer, 7/15/14, at 4.
3The trial court did not issue a further opinion on the order granting Appellees’
motion for summary judgment. Rather, it relied on its November 16, 2014
opinion explaining its denial of Appellants’ motion to amend.
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Appellants timely appealed4 and filed a Pa.R.A.P. 1925(b) statement.5
Appellants raise the following issues for our review:
I. Whether the trial court abused its discretion in denying
the Appellants’ motion to amend their complaint?
II. Whether the trial court committed an error of law in
concluding that Appellees preserved the argument of
“different policy/different adjustor” when it was raised for
the first time at the evidentiary hearing on Appellants’
motion to amend their complaint?
Appellants’ Brief at 4 (capitalization omitted).
Our standards of review are as follows:
The decision of the trial [c]ourt to deny a motion to amend
a complaint is within the sound discretion of the trial court,
and the trial court’s determination will not be disturbed
absent an abuse of that discretion.
4 In some circumstances, an order denying a motion to amend a complaint
may be a final, appealable order. See McClean v. Djerassi, 84 A.3d 1067,
1071 (Pa. Super. 2013) (plaintiff’s original complaint was void and of no effect
because it was filed against a deceased individual; thus, as there were no
outstanding claims, order denying plaintiff’s motion to amend complaint to
substitute dead person’s estate constituted final, appealable order). Here,
however, the order denying the motion to amend was not final and appealable,
because Appellants’ claims against the original defendants remained intact.
See Pa.R.A.P. 341(b)(1) (final order disposes of all claims and all parties).
The final order in this case was the summary judgment order in favor of the
original defendants. Because Appellants timely appealed from this order, this
appeal is proper. See Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1131
(Pa. Super. 2001).
5 We note that Appellants raised nineteen issues in their Rule 1925(b)
statement; however, we will proceed to the merits of this appeal. See Eiser
v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 427-28 (Pa. 2007)
(Baldwin, J., plurality) (“[T]he number of issues raised in a Rule 1925(b)
statement does not, without more, provide a basis upon which to deny
appellate review where an appeal otherwise complies with the mandates of
appellate practice.”).
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On an appeal from a grant of summary judgment, a
reviewing court must examine the record in a light most
favorable to the nonmoving party, accepting as true all well-
pleaded facts and giving that party benefit of all reasonable
inferences which can be drawn from those facts. As our
Court has stated previously:
Summary judgment may be properly entered only
where (1) there is no genuine issue of material fact as
to a necessary element of the cause of action which
could be established by additional discovery or an
expert report, or (2) after completion of discovery and
production of expert reports, an adverse party who
will bear the burden of proof at trial has failed to
produce evidence of facts essential to the cause of
action.
A trial court’s decision to grant summary judgment will
be overturned only if there has been an error of law or clear
abuse of discretion. Our scope of review in these matters is
plenary. Thus, we are not bound by a trial court’s
conclusions of law; instead, we may draw our own
inferences and reach our own conclusions.
Ferraro, 777 A.2d at 1132 (citations omitted).
Appellants first argue that the statute of limitations should be tolled to
allow them to amend their complaint based on Appellees’ active concealment
of the driver’s—i.e., Justin’s—identity. Appellants allege three instances of
active concealment: 1) “Erie advised [Ms. Lapenz] that the driver of the
vehicle . . . had a first name of Dustin[, Justin’s twin]”; 2) “Erie later failed to
correct the [Appellants’] counsel’s identification in a written correspondence
to it of ‘Dustin’ as the party whose negligence caused the injuries to [Ms.
Lapenz]”; and 3) “David Tiffany[] failed to inform the serving deputy upon
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service of the writs that Justin Brink not Dustin Brink was the driver of the
vehicle that struck [Ms. Lapenz] even though he knew that Justin caused the
at-issue accident.” Appellants’ Brief at 12. Appellants conclude that the trial
court erred in denying its motion to amend. We disagree.
It is well settled that
[a] plaintiff may not add a new defendant after the
applicable statute of limitations has expired.[6] Thus, in
cases where the statute of limitations has expired and a
party seeks to amend its pleading to correct the name of [a]
party, the issue is whether the proposed amendment adds
a new party to the litigation or merely corrects a party
name.
* * *
6 Pa.R.C.P. 1033 states, inter alia, that “A party either by consent of the
adverse party or by leave of the court, may at any time . . . add a person as
a party.” Pa.R.C.P. 1033 (subsequently amended eff. Apr. 1, 2017). The
current version of Rule 1033, which does not apply in this case, provides:
An amendment correcting the name of a party against
whom a claim has been asserted in the original pleading
relates back to the date of the commencement of the action
if, within ninety days after the period provided by law for
commencing the action, the party received notice of the
institution of the action such that it will not be prejudiced in
maintaining a defense on the merits and the party knew or
should have known that the action would have been brought
against the party but for a mistake concerning the identity
of the proper party.
Pa.R.C.P. 1033(b) (eff. Apr. 1, 2017). The comments provide “The interests
of justice are served by a rule of civil procedure permitting a party to correct
a complaint that provides an incorrect name of a party when there is no
prejudice to the party brought in by the amendment.” Id., 2017 Explanatory
Cmts. However, “[t]he [2017] amendment of Rule 1033 does not alter the
concealment doctrine and the discovery rule.” Id.
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If the proper party was sued but under the wrong
designation, the correction will be allowed. However, where
the wrong defendant was sued and the amendment is
designed to substitute another, distinct party, it will be
disallowed.
Ferraro, 777 A.2d at 1132-33 (citations omitted).
Where a defendant or his agents actively mislead a
plaintiff as to who are the proper defendants until after the
statute of limitations has expired, the proper remedy is to
toll the statute of limitations as to the defendant regarding
whom the concealment was directed. Intentional
concealment of the identity of the proper defendant is not
necessary. All that is required is that the evidence establish
that one party actively misled another party.
Diaz v. Schultz, 841 A.2d 546, 549 (Pa. Super. 2004) (citations, quotations,
and ellipsis omitted).
In DeRugeriis v. Brener, 348 A.2d 139 (Pa. Super. 1975), we held the
plaintiff was entitled to amend his complaint to add a new party after the
statute of limitations expired. Id. at 140. The parties in DeRugeriis were
involved in a motor vehicle accident. Id. Following the accident, they pulled
their vehicles onto a neighboring property. Id. The property owner witnessed
the parties exchange identification, wrote down the names that were given at
the scene on a piece of paper, and gave the paper to the plaintiff. Id. Based
on this exchange, the plaintiff misidentified the defendant’s father rather than
the defendant as a party to the action. Id. at 139. The defendant’s father,
the plaintiff’s father, and the defendant’s insurance company communicated
with one another. Id. at 140. However, it was not until after the statute of
limitations expired that the defendant’s father filed an answer that correctly
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identified the defendant as the driver. Id. at 139-40. The trial court granted
the plaintiff leave to amend the pleadings, but subsequently granted judgment
on the pleadings based on the statute of limitations. Id.
The DeRugeriis court concluded the statute of limitations for the
underlying action was tolled, and stated, “[i]n the case before us, [the
defendant] did not supply [the plaintiff] with the correct information as to his
name; nor did his father; nor did his insurance carrier. . . . The true identity
of the driver was withheld until [the] defendant answered the original
complaint.” Id. at 140. Accordingly, we reversed the trial court and
remanded for trial. Id.
In Ferraro, this Court found no active concealment as would permit the
plaintiffs to add a new party after the statute of limitations expired. Ferraro,
777 A.2d at 1136. There, a pedestrian was struck by a vehicle. Id. at 1130.
The police arrived at the scene and prepared a report, which correctly
identified the driver. Id. A claims adjustor for the driver’s insurance company
wrote multiple letters to the plaintiffs’7 counsel referencing the driver’s wife
as the insurance policyholder. Id. The plaintiffs’ complaint named the driver’s
wife as a defendant instead of the driver. After the statute of limitations
expired, the driver filed an answer with new matter which specifically denied
that his wife was the proper defendant. Id. at 1130-31. The plaintiffs filed a
motion to amend the complaint, which was denied. Id. at 1131. The trial
7 The plaintiffs included the pedestrian and his wife.
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court granted summary judgment for the defendant, and in the appeal by the
plaintiffs, we affirmed. Id. at 1131, 1137.
Relying on DeRugeriis, the plaintiffs in Ferraro asserted that the
defendant’s insurance company tailored its written correspondence to mislead
the plaintiffs into believing that the driver’s wife was the proper defendant.
Id. at 1135. The plaintiffs further contended “it was reasonable not to rely”
on the police report’s reference to the driver, because “incident reports often
contain mistakes . . . .” Id. (quotations omitted). The Ferraro Court found
DeRugeriis distinguishable, noting that the defendant in DeRugeriis “had
actively concealed the true identity of the driver and even went so far as to
supply the plaintiff with an incorrect name for the driver.” Id. In contrast,
the driver in Ferraro was “correctly named in the police report.” Id. at 1135.
The Ferraro Court concluded: “Simply put, there can be no concealment by
the named defendant where the driver is correctly named in the police report.”
Id. at 1136. The Court continued:
[T]he [plaintiffs] had ample time and means to ascertain the
proper identity of the driver prior to the expiration of the
statute of limitations and to properly name [the driver] as
the defendant in the complaint. The [plaintiffs] were on
notice as to the identity of the driver, and they failed to use
reasonable diligence in correctly naming the defendant in
the complaint.
Id.; see also Hamilton v. Bechtel, 657 A.2d 980, 983 (Pa. Super. 1995)
(“[L]ack of knowledge, mistake, or misunderstanding do not toll the running
of the statute of limitations” (citations and quotations omitted)).
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Here, Appellants’ motion to amend the complaint sought to add a new,
distinct party, and thus could be granted only if there was active concealment
that tolled the statute of limitations. See Ferraro, 777 A.2d at 1134-35;
Diaz, 841 A.2d at 549. The record reflects, however, that there was no active
concealment by Justin, Appellees, or Erie. First, Ms. Lapenz testified Justin
correctly identified himself at the scene of the accident:
[Counsel for Appellant]: What name were you given at the
time of the accident?
[Ms. Lapenz]: Justin.
[Counsel for Appellant]: That’s what you wrote down or
thought you had written down?
[Ms. Lapenz]: Yes, that’s what I had written down.
N.T., 9/30/14, at 5.
Moreover, Ms. Lapenz indicated that neither Appellees nor Erie were
responsible for her confusion between “Justin” and “Dustin”:
[Counsel for Appellee:] There was nothing that Erie
Insurance did to create that initial sense of confusion in your
mind; was there?
[Ms. Lapenz:] It was just doubt that I had.
[Counsel for Appellee:] And it was doubt because of your
work?
[Ms. Lapenz:] Because of me working so closely with a
Justin and Dustin.
[Counsel for Appellee:] And again, it wasn’t anything that
anyone at Erie Insurance did to cause that confusion,
correct?
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[Ms. Lapenz:] Not up until I spoke with Tracy—Sharon.
[Counsel for Appellee:] And it wasn’t anything that was done
by either the Tiffanys or the Brinks that caused that
confusion, correct?
[Ms. Lapenz:] I had no communication with them since the
accident.
Id. at 16.
While a formal police report was not prepared, Ms. Lapenz had taken
notes at the scene of the accident and had correctly identified Justin as the
driver.8 The fact that Ms. Lapenz tended to confuse the names “Justin” and
“Dustin,” did not establish active concealment. See Hamilton, 657 A.2d at
983. Further, unlike the defendant in DeRugeriis, Justin did not supply Ms.
Lapenz with an incorrect name, nor did Appellees withhold Justin’s identity
until after the statute of limitations expired. Within days of the accident, Justin
and David Tiffany contacted Erie and identified Justin as the driver.
Furthermore, while Ms. Russell informed Ms. Lapenz that Dustin was the
driver, that misstatement is not attributable to Appellees. Although Erie
covered both Appellants and Appellee, Ms. Russell was not the liability adjustor
for Appellees; rather, she was the first party medical adjustor for Ms. Lapenz.9
8 We note that Ms. Lapenz subsequently lost these notes. However, she
testified that at the time her confusion arose as to who the other driver was,
she was in possession of another document, which listed Justin as the driver.
9 Ms. Lapenz testified she was aware there were two different adjustors with
two different claim numbers.
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Notably, Ms. Lapenz testified that Appellees’ liability adjustor, Ms. Krepps,
never misled her into believing that the other driver was Dustin:
[Counsel for Appellee:] And [Ms. Krepps] never told you
who the name of the driver was?
[Ms. Lapenz:] Not that I recall.
[Counsel for Appellee:] In other words, it wasn’t a
conversation and she goes, oh, yeah, were you hit by
Dustin? Nothing like that that you recall?
[Ms. Lapenz:] Not that I recall.
N.T. at 20. There was no evidence Ms. Krepps was aware of the error in the
letter of representation.10
There is also no evidence that David Tiffany knew Dustin was wrongly
named as a defendant when Deputy Orr served him with original process.
David Tiffany testified there was nothing written on the envelopes besides his
name, Cheryl Tiffany’s name, and Dustin’s name, and Deputy Orr did not
indicate what the envelopes contained. Therefore, he could not have known
that Deputy Orr was serving him with a lawsuit concerning Justin’s accident
nearly two years earlier. Thus, Appellants’ argument that David Tiffany
engaged in active concealment of the correct defendant lacks support in the
record.
10Ms. Russell and Ms. Krepps were not called as witnesses at the hearing on
the motion to amend the complaint.
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Appellants next contend that Appellees waived their argument that Ms.
Russell’s statement that Dustin, not Justin, was the driver of the vehicle did
not constitute concealment because Ms. Russell was Appellants’ first party
medical benefits adjustor, not Appellees’ liability adjustor. By way of
background, Appellants filed their motion to amend the complaint, claiming,
in part, that Ms. Russell’s statement constituted concealment because Erie
insured both Appellants and Appellees. Appellees filed a written response
contesting the motion and arguing that no misidentification occurred. At the
hearing, Appellees argued that Ms. Russell’s misidentification could not be
attributed to them because Ms. Russell was Appellants’, not Appellees’,
adjustor. Appellants suggested that this argument was waived because
Appellees failed to include in their written response to their motion to amend
the complaint. The trial court granted the parties leave to file supplemental
briefs on the issue of waiver, but ultimately concluded that no waiver occurred
and Appellants’ failed to show that they were prejudiced by the argument. We
agree with the trial court.
Appellants’ motion to amend their complaint is governed by the general
rules governing motions practice. See Pa.R.C.P. 208.1.-211. Unlike
responses to motions for summary judgment or post-trial motions, the general
rules governing motions practice do not include a waiver provision. See
Pa.R.C.P. 208.1(b)(1) (noting general rules regarding motions in Rules 208.1-
211 do not apply to motions for summary judgment or post-trial motions);
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Pa.R.C.P. 1035.3(a), (d) (requiring response to motion for summary judgment
and permitting court to enter summary judgment against a party who fails to
respond). Moreover, it is well settled that the party moving to amend a
complaint after the statute of limitations has run “bears the burden of proving
active concealment through clear and convincing evidence.” Blaine v. York
Financial Corp., 847 A.2d 727, 729 (Pa. Super. 2004) (citation omitted).
Instantly, Appellees contested Appellants’ motion and preserved their
claim that they did not conceal Justin’s identity as the driver from Appellants.
Appellants’ thus bore the burden of establishing a basis for finding
concealment, which they did not meet. See id. Appellees’ specific legal
argument was not waived, and the parties were free to supplement their
arguments based on record developed at the hearing. Moreover, the trial
court was under no obligation to ignore that argument when ruling on
Appellants’ motion. Thus, we discern no merit to Appellants’ argument that
Appellees waived their argument that Ms. Russell’s statement did not
constitute concealment.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2017
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