Peaceman v. Tedesco

Dissenting Opinion by

Judge Wilkinson, Jr.:

The test for determining whether a party may amend his pleadings to alter the designation of the defendant below after the running of the statute of limitations is whether the right party is sued under the wrong name, in which case a correction is allowed. Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). In the instant case the wrong party was sued. The amendment which the majority allows is not a change of name but the substitution of a distinct party not involved in the suit until after the time limits for the cause of action expired.

Here, unlike Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 55 A. 978 (1903), service was not made on the party who is now sought to be included in the case but rather on an entirely different person. Further, the person served answered within *556the statute of limitations, correctly stating his lack of involvement in the action alleged. In my opinion, neither the party served, nor the party now sought to be brought into the suit, participated in any deceptive act or performance which misled plaintiffs.

The party here added was not in court in any manner prior to the expiration of the statute of limitations. I do not believe that a new party can be added under these circumstances after the running of the statute and, accordingly, I dissent.