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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERRENCE R. FICK, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BARRY BARBON : No. 1997 MDA 2019
Appeal from the Order Entered November 20, 2019
In the Court of Common Pleas of Berks County Civil Division at No(s):
18-13137
BEFORE: OLSON, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED MAY 29, 2020
Terrence R. Fick, Jr. (Appellant) appeals from the order granting
summary judgment in favor of Appellee Barry Barbon (Barbon) and dismissing
Appellant’s complaint. We affirm.
The trial court detailed the facts and procedural history as follows:
FACTS
On July 3, 2018, [Appellant] filed a personal injury action
against [Barbon] for an accident that occurred on July 5, 2016.
[Barbon] owns the vehicle that struck [Appellant]’s vehicle.
[Appellant] did not sue the driver of the vehicle, Dean Reist
[(Reist)]. [Barbon] was personally served on July 17, 2018, after
the two-year statute of limitations had expired on July 5, 2018.
[Barbon] filed an [a]nswer on July 23, 2018, denying that he was
the operator of the vehicle at the time of the accident. On July
30, 2018, [Barbon]’s counsel informed [Appellant]’s counsel that
[Reist], [Barbon]’s grandson, was operating the vehicle on the
date of the accident.
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* Retired Senior Judge assigned to the Superior Court.
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On August 1, 2018, [Appellant] filed a [m]otion for [l]eave to
[f]ile [an] [a]mended [c]omplaint to name [Reist] as the
defendant. [Appellant] alleged that on August 2, 2017, his
attorney spoke to the bodily injury liability adjuster for Nationwide
Insurance Company of America (Nationwide), [Barbon]’s
insurance carrier, to inquire about [Barbon]’s correct address for
service of original process. [Appellant] further alleged that
pursuant to DeRugeriis v. Brenner, 348 A.2d 139 (Pa. Super.
1975), where the named defendant or its insurer actively conceals
the identity of the responsible party until after the statute of
limitations expires, the limitations period is deemed tolled.
[Appellant] contended that [Barbon] and Nationwide actively
concealed the identity of [Reist] by not disclosing [Reist]’s identity
when [Appellant]’s counsel asked for the proper address to serve
[Barbon].
The parties engaged in discovery before [the trial] court heard
argument on the issue.
* * *
Procedural History
After argument, by [o]rder dated January 3, 2019, [the trial]
court denied [Appellant]’s [m]otion for [l]eave to [f]ile [an]
[a]mended [c]omplaint. On March 22, 2019, [Appellant] filed a
second [m]otion for [l]eave to [f]ile [an] [a]mended [c]omplaint
to name [Reist] as a party defendant. [Appellant] contended that
Pa.R.C.P. 1033(b) applied to the instant case. After argument,
[the trial] court denied [Appellant]’s second motion.
On September 6, 2019, [Barbon] filed a [m]otion for
[s]ummary [j]udgment, contending that [Appellant]’s claims must
be dismissed as a matter of law. Following argument, [the trial]
court granted this motion. [Appellant] filed a timely appeal.
Trial Court Opinion, 2/14/20, at 1-3.
The trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925. On appeal, Appellant presents the following issues
for review:
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1. Whether the Honorable [t]rial [c]ourt erred and abused its
discretion in denying [Appellant]’s [s]econd [m]otion for [l]eave
to file an [a]mended [c]omplaint where: (1) Reist received notice
of the instant litigation within 90 days of the running of the statute
of limitations; (2) Reist knew or should have known that he would
be named as a party defendant; and (3) Reist will not be
prejudiced in maintaining a defense on the merits.
2. Whether the Honorable [t]rial [c]ourt erred and abused its
discretion in denying [Appellant]’s [f]irst [m]otion for [l]eave to
file an [a]mended [c]omplaint where [Barbon] and his agents
actively misled [Appellant]’s undersigned counsel as to the
identity of the driver in the motor vehicle accident at issue where
[Barbon]’s agents knew the true identity of the driver of Barbon’s
vehicle on July 5, 2016 and knew or should have known that the
driver of Barbon’s vehicle would be at issue, and still did not
disclose the identity of the driver to [Appellant]’s counsel until
after the [s]tatute of [l]imitation had run.
3. Whether the Honorable [t]rial [c]ourt erred and abused its
discretion in granting [Appellant]’s [m]otion for [s]ummary
[j]udgment where, had the [c]ourt granted either of [Appellant]’s
prior [m]otions for [l]eave to [f]ile [an] [a]mended [c]omplaint,
genuine issues of material fact would exist regarding negligence
and causation, requiring submission of the case to the jury as
finder of fact.
Appellant’s Brief at 7-8.
Appellant’s first two issues challenge the trial court’s denial of his two
requests to file an amended complaint. “The decision of the trial court 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.” TCPF Ltd. P’ship v. Skatell, 976 A.2d 571, 574 (Pa. Super.
2009) (citations omitted). “An abuse of discretion exists when the trial court
has rendered a judgment that is manifestly unreasonable, arbitrary, or
capricious, has failed to apply the law, or was motivated by partiality,
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prejudice, bias, or ill will.” Guntrum v. Citicorp Tr. Bank, 196 A.3d 643,
646 (Pa. Super. 2018).
In his first issue, Appellant challenges the trial court’s denial of his
second request to file an amended complaint. In support, Appellant asserts
that the trial court failed to properly apply the amendment to Pennsylvania
Rule of Civil Procedure 1033, the rule that governs amendments to pleadings.
Effective April 1, 2017, our Supreme Court amended Rule 1033 to add the
following language as Subsection (b):
(b) 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 90 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).
Appellant argues that the trial court should have permitted him under
the framework adopted in Rule 1033(b) to file an amended complaint to add
Reist as a party. Appellant contends that the provisions of Subsection (b)
permitted him to add Reist as a party “relating back” to the commencement
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of the action (July 3, 2018), and importantly, before the expiration of the two-
year statute of limitations.1 Appellant argues:
[Reist] knew or should have known that he would be named as a
party in the instant litigation [because] he was made aware that
the [c]omplaint concerned the motor vehicle accident in which he
rear-ended [Appellant]’s vehicle in the same month in which
Barbon was served with the [c]omplaint. Further, Reist will not
be prejudiced by presenting a defense on the merits as he has
already done so.
Appellant’s Brief at 15.
We first recognize that “the interpretation and application of a
Pennsylvania Rule of Civil Procedure presents a question of law.” Boatin v.
Miller, 955 A.2d 424, 427 (Pa. Super. 2008) (citation omitted). Thus, “our
standard of review is de novo, and our scope of review is plenary.” Id.
Pennsylvania Rule of Civil Procedure 127 sets forth the guidelines for
interpreting other rules of civil procedure. See Pa.R.C.P. 127. It states:
Rule 127. Construction of Rules. Intent of Supreme Court Controls
(a) The object of all interpretation and construction of rules is to
ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect to all
its provisions. When the words of a rule are clear and free from
all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.
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1 “The following actions and proceedings must be commenced within two
years: . . . Any other action or proceeding to recover damages for injury to
person or property which is founded on negligent, intentional, or otherwise
tortious conduct[.]” 42 Pa.C.S.A. § 5524(7); see also Meadows v.
Goodman, 993 A.2d 912, 915 (Pa. Super. 2010) (“The statute of limitations
for a personal injury claim is two years.”).
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(c) When the words of a rule are not explicit, the intention of the
Supreme Court may be ascertained by considering, among other
matters (1) the occasion and necessity for the rule; (2) the
circumstances under which it was promulgated; (3) the mischief
to be remedied; (4) the object to be attained; (5) the prior
practice, if any, including other rules and Acts of Assembly upon
the same or similar subjects; (6) the consequences of a particular
interpretation; (7) the contemporaneous history of the rule; and
(8) the practice followed under the rule.
Pa.R.C.P. 127. Importantly, “a note to a rule or an explanatory comment is
not a part of the rule, but may be used in construing the rule.” Boatin, 955
A.2d at 427 (citing Pa.R.C.P. 129(e)).
Because there is little case law applying the amendment to Rule 1033,
we briefly review the governing principles of amending pleadings. This Court
has summarized the following with respect to Rule 1033:
It is “beyond peradventure that leave to amend pleadings has
traditionally been liberally granted in this jurisdiction.” Biglan v.
Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984) (citations
omitted); see Pa.R.C.P. 126. As can be seen from the clear
language of Rule 1033, no limit is imposed on the time when an
amendment may be made. Thus, “[p]leadings may be amended
at the discretion of the trial court after pleadings are closed, while
a motion for judgment on the pleadings is pending, at trial, after
judgment, or after an award has been made and an appeal taken
therefrom.” Id. at 1025-26 (emphasis added) (citing Sheppard
v. First Pa. Banking & Tr. Co., 184 A.2d 309, 311 (Pa. Super.
1962)); see also Keller v. R.C. Keller Motor Co., 124 A.2d 105,
106 (Pa. 1956) (noting that pleadings may be amended at any
stage of the proceedings); Trabue v. Walsh, 177 A. 815, 816
(Pa. 1935) (“Pleadings may be amended at any state of the
case.”).
As we explained in Biglan, “[t]he fundamental purpose of this
rule is to prevent cases from turning on purely technical defects.
. . . [H]ypertechnicality and formalism in pleading are contrary to
modern practice of allowing free amendment in order to promote
resolution of cases on their merits.” Biglan, 479 A.2d at 1026
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(citations omitted). Nonetheless, a trial court may deny
amendment of pleadings if there is resulting prejudice or surprise
to the adverse party. Id. “[P]rejudice, in turn, must be more
than a mere detriment to the other party because any amendment
requested certainly will be designed to strengthen the legal
position of the amending party and correspondingly weaken the
position of the adverse party.” MacGregor v. Madiq Inc., 576
A.2d 1123, 1126 (Pa. Super. 1990) (citation omitted). In
Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), we
noted that prejudice sufficient to deny amendment of the
pleadings “must be more than a mere detriment to the other
party[.]” Id. at 346. The “fact that the adverse party has
expended time and effort in preparing to try a case against the
amending party is not such prejudice as to justify denying the
amending party leave to amend[.]” Id. (citation omitted).
Indeed, “[d]enial of a petition to amend, based on nothing more
than unreasonable delay, is an abuse of discretion.” Id. at 347
(citation omitted). However, under the current language of Rule
1033, pleadings may not be amended to correct a party’s name if
more than 90 days have passed since the expiration of the statute
of limitations. See Pa.R.C.P. 1033(b).
Thom v. CDM Auto Sales, 221 A.3d 681, 684-85 (Pa. Super. 2019) (citations
modified; footnotes omitted).
In this case, Appellant did not seek to amend the complaint to correct a
party’s name. Rather, Appellant sought to amend the complaint to add Reist
as a party because Reist, not Barbon, was the driver of the car that struck
Appellant’s vehicle. Appellant’s Brief at 15. Historically, such practice was
explicitly prohibited beyond the two-year limitations period. As this Court
explained:
Pennsylvania Rule of Civil Procedure 1033 provides that a
party, by consent or leave of court, “may at any time change the
form of action, correct the name of a party or amend his pleading.”
Pa.R.C.P. 1033. However, amendment of a complaint after the
statute of limitations has expired will not be permitted where the
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amendment attempts to bring a new party into the action.
As our Court has stated in a prior case:
A plaintiff may not add a new defendant after the
applicable statute of limitations has expired. Hoare v. Bell
Tel. Co. of Pa., 500 A.2d 1112 (Pa. 1985); Zercher v.
Coca–Cola USA, 651 A.2d 1133 (Pa. Super. 1994). Thus,
in cases where the statute of limitations has expired and a
party seeks to amend its pleading to correct the name of
party, the issue is whether the proposed amendment adds
a new party to the litigation or merely corrects a party
name. Jacob’s Air Cond. v. Assoc. Heating, 531 A.2d
494, 496 (Pa. Super. 1987). “If an amendment constitutes
a simple correcting of the name of a party, it should be
allowed, Wicker v. Esposito, 457 A.2d 1260 (Pa. 1983),
but if the amendment in effect adds a new party, it should
be prohibited. Cianchetti v. Kaylen, 361 A.2d 842 (Pa.
Super. 1976).” Jacob’s Air Cond. v. Assoc. Heating,
supra, 531 A.2d at 496. Zercher v. Coca-Cola USA,
supra, 651 A.2d at 1135. If the proper party was sued but
under the wrong designation, the correction will be allowed.
However, where the wrong party was sued and the
amendment is designed to substitute another,
distinct party, it will be disallowed. Hamilton v.
Bechtel, 657 A.2d 98 (Pa. Super. 1995).
Anderson Equipment Co. v. Huchber, 690 A.2d 1239, 1241
(Pa. Super. 1997) (footnote omitted).
Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1132-33 (Pa. Super. 2001)
(emphasis added; citations modified).
Thus, the test courts have employed to determine if an amendment is
permissible after the expiration of the statute of limitations is whether the
plaintiff sued the correct party, but under the wrong name, or whether the
plaintiff sued the wrong party and sought to name another party. See id.
There are numerous examples in Pennsylvania case law demonstrating that a
plaintiff’s failure to sue the correct party in a complaint ultimately led to the
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termination of the suit. See, e.g., Saracina v. Cotoia, 208 A.2d 764,766
(Pa. 1965) (affirming trial court’s refusal to permit plaintiff, who was struck
by a vehicle, to amend the complaint after the statute of limitations had run
where the plaintiff improperly named the driver’s father as the sole
defendant); Ferraro, 777 A.2d at 1137 (upholding trial court’s refusal to allow
plaintiff, who was struck by a vehicle, to amend the complaint after the statute
of limitations expired, where the plaintiff incorrectly named the driver’s wife
as the lone defendant).
Appellant asserts that Rule 1033(b) now permits a party to amend the
pleadings to add or substitute another party to a suit after the limitations
period. We disagree.
The Explanatory Comment for the 2017 amendment to Rule 1033
states:
Currently, the Rules of Civil Procedure do not expressly permit
an amendment correcting the name of a party against whom a
claim is asserted to relate back without a showing of concealment
when the statute of limitations has expired and the effect of that
correction operates to add another party. However, case law has
interpreted the Rules to permit such an amendment within the
statute of limitations. Rule 1033 has been amended to expressly
permit amendments correcting the name of the party against
whom a claim is asserted to relate 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 to be
brought in by the amendment has received notice of the
commencement of the action such that it will not be prejudiced in
obtaining 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.
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Consider the following example: Harry Roberts, who resides at
949 Alcoma Street, Pittsburgh, PA, was the driver of an
automobile which struck the plaintiff when he was crossing the
intersection at Grant and Forbes Street, Pittsburgh, PA, at
approximately 11:00 a.m. on October 11, 2013. The plaintiff’s
complaint, filed on October 2, 2015, mistakenly identifies the
driver as Henry Rosen. He is the only named defendant in the
complaint.
On October 7, 2015, the Sheriff made service by serving Mary
Roberts at 949 Alcoma Street, Pittsburgh, PA. She is described in
the Sheriff’s Return as the wife of the defendant. On January 2,
2016, the complaint is amended to correct “Henry Rosen” to
“Harry Roberts.”
The amendment of Rule 1033 expressly permits the plaintiff to
amend the complaint to correct the name of the defendant to
Harry Roberts, because it is clear from the body of the complaint
that the plaintiff was suing the driver of the automobile which
struck the plaintiff and service of the complaint furnished sufficient
notice to Harry Roberts that a lawsuit has been initiated against
him for actions he is liable for even though the defendant is
identified on the complaint as Henry Rosen. This is consistent with
existing case law and codifies current practice.
Pa.R.C.P 1033 (Explanatory Comment -- 2017).
Thus, while Rule 1033(b) and the Explanatory Comment permit a
plaintiff to “correct” the name of a party to “relate back” to before the
expiration of the statute of limitations, neither the rule nor the comment
permit or contemplate a plaintiff adding or substituting another individual after
the statute of limitations has expired. See id. Additionally, the Explanatory
Comment states that we are to read Rule 1033(b) “consistent with existing
case law and codif[ying] current practice.” Id. The existing case law is well-
settled – “where the wrong party was sued and the amendment is designed
to substitute another, distinct party, it will be disallowed.” Ferraro, 777 A.2d
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at 1133. Here, Appellant sought to amend the complaint to include Reist.
Appellant’s Brief at 15. Therefore, the trial court did not err in denying his
second motion for leave to amend the complaint. See id.
Moreover, Rule 1033(b) states that a plaintiff may only amend a
complaint to correct the name of the party where “the action would have been
brought against th[at] party but for a mistake concerning the identity of the
proper party.” Pa.R.C.P. 1033(b). The trial court emphasized that in this
case, there was no mistake concerning the correct identity of the driver, Reist,
who rear-ended Appellant’s vehicle. See Trial Court Opinion, 2/14/20, at 2-
3. Appellant admitted in his deposition testimony that after the accident, Reist
provided him with Reist’s name, address, automobile insurance information,
and driver’s license. N.T., 10/16/18, at 8-11, Exhibit 1 (Deposition of
Appellant). It is undisputed that Appellant knew Reist’s identity.
In sum, the trial court correctly determined that Rule 1033(b) was
inapplicable, and did not abuse its discretion in denying Appellant’s second
motion for leave to file an amended complaint.
Next, Appellant argues that the trial court abused its discretion in
denying his first request to file an amended complaint. Appellant asserts that
Barbon and his insurer, Nationwide, actively concealed Reist’s identity from
Appellant’s counsel. Appellant contends that neither Barbon nor Nationwide
mentioned Reist to Appellant’s counsel in any correspondence in the months
following the accident.
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Appellant references this Court’s holding that “the statute of limitations
is tolled where a defendant actively conceals the identity of the party against
whom a plaintiff intends to bring a cause of action.” Lafferty v. Alan Wexler
Agency, Inc., 574 A.2d 671, 672 (Pa. Super. 1990). In this case, however,
the record belies Appellant’s claim. The trial court observed that Appellant
“always knew the driver’s identity.” Trial Court Opinion, 2/14/20, at 5. As
noted above, Appellant testified that Reist provided him with his name,
address, automobile insurance information, and driver’s license at the scene
of the accident. N.T., 10/16/18, at 8-11, Exhibit 1 (Deposition of Appellant).
Thus, the fault for Appellant’s counsel not knowing the correct identity of the
driver lies with Appellant and his counsel. As the record does not support
Appellant’s second claim, we cannot conclude that the trial court abused its
discretion in denying Appellant’s first motion for leave to file an amended
complaint.
Finally, we turn to Appellant’s third issue: whether the trial court
properly granted summary judgment. Our standard of review regarding a trial
court’s decision to grant or deny summary judgment is as follows:
A reviewing court may disturb the order of the trial court only
where it is established that the court committed an error of law or
abused its discretion. As with all questions of law, our review is
plenary.
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
where there is no genuine issue of material fact and the moving
party is entitled to relief as a matter of law, summary judgment
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may be entered. Where the non-moving party bears the burden
of proof on an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Failure of a non[-
]moving party to adduce sufficient evidence on an issue essential
to his case and on which it bears the burden of proof establishes
the entitlement of the moving party to judgment as a matter of
law. Lastly, we will view the record in the light most favorable to
the non-moving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party.
Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014).
Here, the trial court based its decision to grant summary judgment on
Appellant’s failure to name the proper party, Reist, as a defendant in his suit
alleging negligent operation of a vehicle. See Trial Court Opinion, 2/14/20,
at 7-8. Based on our review of the record, the evidence supports the trial
court’s determination that Appellant did indeed sue the wrong individual, and
the trial court did not abuse its discretion in denying Appellant’s motions for
leave to file an amended complaint. Therefore, we conclude that the trial
court correctly determined that there were no disputed material facts and
Barbon was entitled to judgment as a matter of law. See Thompson, 95
A.3d at 904.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/29/2020
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