Kuisis v. Baldwin-Lima-Hamilton Corp.

Dissenting Opinion by

Mr. Chief Justice Jones :

I disagree with the majority view that appellant’s claim was not barred by the statute of limitations. I therefore respectfully dissent.

In the present case appellant was permitted, over appellee’s objection, to amend his complaint to include allegations of liability pursuant to Bestatement 2d, Torts §402A, more than two years after the statute of *341limitations had expired.1 We are concerned here with the policy of freely allowing amendments to pleadings and the rule that where the controlling facts are all stated, and the statement is otherwise sufficient, any amendment which merely amplifies the original cause of action will be allowed even after expiration of the statute of limitations, juxtaposed with the corollary rule that a new cause of action may not be introduced into the case by way of amendment to the complaint after the statute of limitations has expired. See Arner v. Sokol, 373 Pa. 587, 96 A.2d 854 (1953); Cox v. Wilkes-Barre Ry. Corp., 334 Pa. 568, 6 A.2d 538 (1939); Goldberg v. Friedrich, 279 Pa. 572, 124 A. 186 (1924). Two related questions are thus presented for our decision. Did the original complaint set forth a claim under Section 402A; and, if not, did the amendment to that complaint introduce a new cause of action?

The pertinent portions of appellant’s original complaint are paragraphs 4 and 5 wherein the theory of recovery is set forth:

“4. Plaintiff, while an employee of North Star Transfer was helping to load some pipe when a crane, manufactured by Baldwin-Lima-Hamilton Corporation in such a defective and negligent manner dropped the load on top of plaintiff from which the plaintiff suffered injuries.
“5. The injuries and damages hereinafter set forth were caused by, and were the direct and proximate re-*342suit, of the negligence, willfulness and wantonness of defendant, generally, and in the following particulars: [eleven specific assignments of negligence, willfulness and wantonness].” (Emphasis added.)

It is clear from the complaint that appellant’s theory of liability was one of negligence and not one of strict liability under Section 402A2 Nor could any amendment to that complaint be said to be an amplification or clarification of a cause of action already stated. It is of no moment that the original complaint averred some of the facts upon which a Section 402A could have been based. See Groh v. Philadelphia Electric Co., 441 Pa. 345, 271 A.2d 265 (1970); Cox. v. Wilkes-Barre Ry. Corp., 334 Pa. 568, 6 A.2d 538 (1939). This is not a case of adding facts to amplify a previously, even though weakly, stated theory, but, at best, one of adding new facts from which a new theory of liability can thereafter be inferred. The former is permissible; the latter is not. I believe the majority failed to perceive this distinction.

*343The remaining question is whether the amendment to the complaint introduced a new cause of action.3 This Court has fashioned a four-pronged test to be applied when the question presented is whether an amended statement presents a new and different cause of action: (1) would a judgment bar any further action on either, (2) does the same measure of damages support both, (3) are the same defenses open in each, and (4) is the same measure of proof required? Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965); Raskus v. Allegheny Valley Street Ry. Co., 302 Pa. 34, 153 A. 117 (1930); Goldberg v. Friedrich, 279 Pa. 572, 124 A. 186 (1924). Applying that test to the present facts, we find that three of the four inquiries must be answered in the negative. An adverse judgment in an action based on either negligence or Section 402A would not, in itself, bar a subsequent action under the other theory. The same defenses are not open in each, nor is the same measure of proof required in each. Since the two theories are merely alternative bases of relief for one injury, however, the same measure of damages would *344naturally support both.4 Under tbis test it is clear tbat the amendment introduces a new cause of action.

To sanction the amendment to appellant’s complaint in this case would prejudice appellee not because it might lose its case on the merits if the amendment is allowed, but because the new allegation was offered late. An amendment will not be allowed if such allowance would undermine the valid policies embodied in the statute of limitations. Bata v. Central-Penn National Bank, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972). Since the only theory upon which appellant’s case was sent to the jury was Section 402A liability, a finding that the amendment to the complaint was improperly allowed would resolve the case.

The majority claims, however, that even if Kuisis’ claim under Section 402A were held to be barred by the statute of limitations, the case would have to be retried on the issue of negligence. Again I respectfully disagree. The diminished record, insofar as the excluded expert’s testimony would have borne on negligence, is of no relevance to this appeal. Appellant’s appeal from the Court of Common Pleas was from that court’s order *345granting judgment on the whole record.5 At that stage, negligence was no longer a part of appellant’s case. Appellant did not object to the trial court’s action withdrawing the issue of negligence, nor was this action appealed from.6 Consequently, even if Kuisis’ claim is not barred by the statute of limitations, the issue of negligence may not be retried.

I would affirm the order of the Superior Court.

Mr. Justice Nix joins in this dissenting opinion.

At the conclusion of the evidence in the trial of the case appellee moved for a directed verdict, but this motion was denied. The case went to the jury solely on the theory of Section 402A liability. After approximately five and a half hours of deliberation, however, the jury reported that it was deadlocked, and was subsequently discharged. Thereafter, appellee filed a motion for judgment on the whole record. This motion was argued before the court en banc and was granted, the court finding, inter alia, that the amended complaint should not have been allowed.

In Pennsylvania the pleadings must allege all ultimate facts upon which a cause of action is based. Pa. R. C. P. 1019. This system of fact pleading serves to secure a full and concise statement of the facts upon which a claim is based so that the other party will know with reasonable certainty the nature and character of such a claim. A litigant is not required to plead as such the particular theory or theories upon which he sues. Such theory or theories, however, must be disclosed by the facts and a theory not supported by the allegations of the complaint may not be proved at trial. See 3 Pennsylvania Standard Practice, ch. 11, §42. All the ultimate facts upon which appellant would have been entitled to recover under Section 402A were not contained in the original complaint. In fact, the only such facts are those also consistent with the enunciated theory of negligence and included in the complaint for the express purpose of amplifying that theory. On the original complaint alone, appellant would not have been entitled to have his case submitted to the jury on a theory of Section 402A liability.

Appellant amended his complaint by amending paragraphs 4 and 5 to read as follows:

“4. Plaintiff, while working as an employee of North Star Coal Company, which was the owner of a crane that had been manufactured by and sold by Baldwin-Lima-Hamilton Corporation, was injured when a load being supported by that crane dropped onto the plaintiff as a consequence of a defective condition in the crane that had been present since its manufacture and as a consequence of the negligent manner in which the crane had been designed and manufactured.
“5. The injuries and damages hereinafter set forth were proximately caused by the defective condition in the crane that was substantially the same as it had been when the crane was sold by the defendant, which was engaged in the business of selling cranes, and by the negligence of the defendant, the particulars of which are set forth, as follows:”

The propriety of amending a complaint alleging negligence to include allegations of liability under Section 402A bas twice been before the courts of this Commonwealth. In Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966), the case in which this Court adopted Section 402A as the law of Pennsylvania, the appellant was permitted to amend his complaint to explicitly state a cause of action for defective products liability since he had broadly pleaded those facts necessary to a cause of action for defective products liability and since not until that ease had we adopted this new basis of liability. Similarly in Thompson v. Wyeth Laboratories, 46 Pa. D. & C. 2d 360 (Del. C. P. 1969), the plaintiff was permitted to amend his complaint to clarify the allegation of products liability where the necessary facts had been broadly pleaded and where the original complaint had been filed prior to this Court’s ruling in Webb v. Zern. The present case, however, was commenced almost three years after this Court’s decision in Webb v. Zern.

As aptly stated in Mincy v. Washington National Insurance Co., 130 Pa. Superior Ct. 285, 295, 196 A. 893, 897-98 (1938): “A motion for judgment upon the entire record must be disposed of upon the record as it existed ‘at the close of the trial.’ The court can neither eliminate evidence which may have been improperly admitted, nor insert offers of evidence which should have been admitted but were excluded; the remedy in either case is a new trial. . . .” Thus, assuming that the statute of limitations did not bar the amendment to the complaint, if evidence bearing on appellee’s liability under Section 402A were improperly excluded, appellant would be entitled to a new trial based on Section 402A liability.

Appellant had available as grounds for appeal on this issue the improper exclusion of the proffered testimony of the expert on negligence, but chose not to pursue this avenue.