J-S57030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUZ RIVERA AND ABRIANNA RIVERA                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

RONALD MANZI

                            Appellee                   No. 948 EDA 2015


                  Appeal from the Order Entered March 3, 2015
                 In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2014-07070


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                            FILED NOVEMBER 23, 2015

       Luz and Abrianna Rivera (Riveras) appeal from the order entered on

March 3, 2015,1 in the Court of Common Pleas of Bucks County, denying

them leave to amend their complaint and granting summary judgment in

favor of Ronald Manzi.          The Riveras claim the trial court erred (1) in

determining adding a new count of negligent entrustment against Manzi was

not allowable because the statute of limitations had expired, and (2) in

granting summary judgment prior to discovery being taken and based upon
____________________________________________


1
  There were multiple orders signed by the trial court on March 3, 2015; two
are relevant herein. The motion for summary judgment addressed all the
allegations in the complaint. This order was docketed on March 4, 2015.
However, the motion for leave to amend the complaint was pending. That
motion was also signed on March 3, 2015, but was not docketed until March
6, 2015. It is clear that the effect of both orders was to terminate all claims.
For ease of reference, we will treat the order granting summary judgment as
the final order that made the denial of the motion to amend appealable.
J-S57030-15



incompetent evidence. Following a thorough review of the submissions by

the parties, relevant law, and the certified record, we affirm the denial of the

motion to amend and reverse the grant of summary judgment. Accordingly,

we remand this matter for further proceedings.

      Because no discovery has been taken in this matter, the statement of

facts is brief. Pursuant to the complaint, on October 14, 2012, Luz Rivera

was operating her car and Abrianna Rivera was her passenger.                 While

stopped on South Buckstown Road, Middletown, Pennsylvania, the Rivera car

was struck from behind by a car driven by Ronald Manzi.             Both plaintiffs

claim to have suffered various spinal injuries; Luz Rivera also claimed to

suffer from closed head trauma and headaches.             All claims of negligence

against Manzi arose from his alleged negligent operation of the car.           The

instant lawsuit was filed in Bucks County on October 9, 2014, less than one

week prior to expiration of the statute of limitations.

      On November 20, 2014, Manzi filed a timely answer, claiming in

relevant part, that he was not the driver of the car at the time of the

accident, rather his son, Christopher, was. On November 26, 2014, Manzi

filed a motion for summary judgment claiming the Riveras had sued the

wrong party and that the statute of limitations expired, leaving the

complaint fatally flawed. Manzi attached a copy of a Middletown Township

police report that identified Christopher Manzi as the driver of the Manzi

vehicle. The report also listed Ronald Manzi as the owner of the car.




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      The Riveras responded by filing a motion to amend the complaint by

adding a claim of negligent entrustment against Ronald Manzi.         In the

motion, the Riveras stated the identity of the driver of the Manzi car was at

issue and the claim of negligent entrustment was raised as a claim in the

alternative.   The Riveras also opposed the motion for summary judgment

arguing there was no evidence to support Ronald Manzi’s assertion he was

not the driver. The Riveras noted, “The copy of the [police accident] report

shall not be admissible as evidence in any action for damages or criminal

proceedings arising out of a motor vehicle accident.”     See 75 Pa.C.S. §

3751(b)(4). Accordingly, the police report identifying Christopher Manzi as

the driver was inadmissible pursuant to statute and represented inadmissible

hearsay. On March 3, 2014, without a hearing, by separate orders, the trial

court granted Manzi’s motion for summary judgment and denied the Riveras’

motion for leave to amend. This timely appeal followed.

      Initially we note, “[o]ur standard of review of a trial court's order

denying a plaintiff leave to amend its complaint ... permits us to overturn

the order only if the trial court erred as a matter of law or abused its

discretion.” Schwartzwaelder v. Fox, 895 A.2d 614, 621 (Pa. Super.

2006) (citation omitted).

      Additionally,

      Our scope of review of a trial court's order granting or denying
      summary judgment is plenary, and our standard of review is
      clear: the trial court's order will be reversed only where it is


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      established that the court committed an error of law or abused
      its discretion.


      Summary judgment is appropriate only when the record clearly
      shows that there is no genuine issue of material fact and that
      the moving party is entitled to judgment as a matter of law. The
      reviewing court must view the record in the light most favorable
      to the nonmoving party and resolve all doubts as to the
      existence of a genuine issue of material fact against the moving
      party. Only when the facts are so clear that reasonable minds
      could not differ can a trial court properly enter summary
      judgment.

Linde v. Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa. Super. 2015)

(citation omitted).

      We now turn our attention to the denial of the motion for leave to

amend the complaint.     In general, “[l]eave to amend pleadings is to be

liberally granted.” Chaney v. Meadville Medical Center, 912 A.2d 300,

303 (Pa. Super. 2006).

      However, an amendment introducing a new cause of action will
      not be permitted after the Statute of Limitations has run in favor
      of a defendant. Only if the proposed amendment merely
      amplifies, as opposed to altering, the cause of action already
      averred, will it be allowed if the statute of limitations has run.

Id. at 303-04.

      Instantly, there is no dispute that the statute of limitations had run

prior to the Riveras’ attempt to amend the complaint. Therefore, we must

determine whether the amendment sought to amplify or alter the complaint.

“An amendment raises a new cause of action if it involves a different theory

or basis of recovery, pleads a different relationship between the parties, or


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required different proof.” Shaffer v. Pennsylvania Assigned Claim Plan

Ins. Co. of N. Am., 518 A.2d 1213, 1221 (Pa. Super. 1986).

      It is axiomatic that the elements of a negligence-based cause of
      action are a duty, a breach of that duty, a causal relationship
      between the breach and the resulting injury, and actual loss.

Charlie v. Erie Ins. Exchange, 100 A.3d 244, 250 (Pa. Super. 2014).

      As originally pled, the Riveras claimed Manzi’s negligent actions

consisted of:

      A) Operating the Manzi vehicle in a negligent and careless
      manner;

      B) Failing to have the Manzi vehicle under proper and adequate
      control at the time and place aforesaid;

      C) Failing to give proper and sufficient approach of the Manzi
      vehicle;

      D) Operating the Manzi vehicle without due regard for the rights,
      safety and position of Luz Rivera herein at the time and place
      aforesaid;

      E) Failing to maintain a clear distance between the Manzi vehicle
      and the DeLuca [sic] vehicle; and

      F) Causing the Manzi vehicle to strike the Rivera vehicle.

Complaint, 10/14/2009, at ¶¶ 17, 19.

      All of these claims of Manzi’s negligence are based upon the ostensible

fact that Ronald Manzi was operating the car when it was involved in the

accident.

      However,

      Under the theory of negligent entrustment:



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         It is negligence to permit a third person to use a thing or
         to engage in an activity which is under the control of the
         actor, if the actor knows or should know that such person
         intends or is likely to use the thing or to conduct himself in
         the activity in such a manner as to create an unreasonable
         risk of harm to others.

         ... However, our cases do require that the entrustee be
         causally negligent before the entrustor may be held liable
         through negligent entrustment.

Phillips v. Lock, 86 A.3d 906, 913 (Pa. Super. 2014) (citation omitted).

      It is clear that to prove negligent entrustment against Ronald Manzi

would require entirely different proof from a claim that he operated the car

negligently.   In the instant matter, negligent entrustment would require

proof that Christopher Manzi (the entrustee) was causally negligent in the

manner Ronald Manzi was originally alleged to have been negligent.

Further, the Riveras would be required to prove that Ronald Manzi (the

entrustor) was negligent in a new manner, by failing to recognize his son

should not have been allowed to drive the car.

      Not only does the claim of negligent entrustment require different

proof, but it also changes the relationship between the parties. In the

original complaint, Manzi was alleged to have been directly negligent

regarding the Riveras.      In the proposed amended complaint, in the




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alternative, Manzi was allegedly liable to the Riveras by negligently

permitting his son to operate his car.2

       Accordingly,     the   proposed         amendment   seeking   to   hold   Manzi

accountable through the theory of negligent entrustment represented an

impermissible addition of a new cause of action past the expiration of the

statute of limitations. The Riveras are not entitled to relief on this issue.

       Next, the Riveras argue the trial court improperly granted summary

judgment in favor of Manzi based upon the original cause of action that

alleged Manzi was the operator of the car at the time of the accident. The

Riveras claim summary judgment was premature in that there remained an

open dispute of a material fact. That fact being the identity of the driver of

the Manzi car.

       In his answer to the complaint, Manzi claimed he was not the driver of

the car at the relevant time; rather his son Christopher was driving. In the

subsequent motion for summary judgment, filed before any discovery had

been taken, Manzi included a copy of the Middletown Township Police

Accident Report. See Motion for Summary Judgment, 11/26/2014, Exhibit

C. This police report indicates that on October 14, 2012, Christopher Manzi

was the operator of the blue Honda CRV owned by Ronald Manzi. The trial


____________________________________________


2
  The amended complaint did not abandon the original claim that Manzi was
the driver of the car. The amended complaint added the allegations of
negligent entrustment.



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court apparently accepted this report as proof that Ronald Manzi was not the

operator. In its Pa.R.A.P. 1925(a) opinion, without comment or explanation,

the trial court merely noted that Ronald Manzi was not the operator of the

car at the relevant time and therefore could have been negligent as alleged

by the Riveras.

      The police report would be compelling evidence of Ronald Manzi’s non-

involvement except that such reports are statutorily prohibited from being

used as evidence. The relevant statute specifically states:

      The copy of the [police accident] report shall not be admissible
      as evidence in any action for damages or criminal proceedings
      arising out of a motor vehicle accident.

75 Pa.C.S. § 3751(b)(4).

      Manzi cites no rule of law that permits a finder of fact to base

judgment, summary or otherwise, upon inadmissible evidence. Accordingly,

all that was before the trial court on the issue of Ronald Manzi’s negligent

operation of the car was the Riveras’ allegation that Manzi was the operator

and Manzi’s denial. The simple denial of an allegation is not a proper basis

for the grant of summary judgment. Rather, it has long been the law that,

      Our standard of review of an order granting summary judgment
      requires us to determine whether the trial court abused its
      discretion or committed an error of law. Our scope of review is
      plenary. In reviewing a trial court's grant of summary judgment,
      we apply the same standard as the trial court, reviewing all the
      evidence of record to determine whether there exists a genuine
      issue of material fact. We 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. Only where there is no genuine issue

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      as to any material fact and it is clear that the moving party is
      entitled to a judgment as a matter of law will summary
      judgment be entered. All doubts as to the existence of a genuine
      issue of a material fact must be resolved against the moving
      party.

Criswell v. Atlantic Richfield Co., 115 A.3d 906, 908-09 (Pa. Super.

2015) (citation omitted).

      Additionally,

      Motions for summary judgment necessarily and directly implicate
      the plaintiff's proof of the elements of a cause of action.
      Summary judgment is proper if, after the completion of
      discovery relevant to the motion, including the 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 or defense which in a jury trial would require
      the issues to be submitted to a jury. In other words, whenever
      there is no genuine issue of any material fact as to a necessary
      element of the cause of action or defense, which could be
      established by additional discovery or expert report and the
      moving party is entitled to judgment as a matter of law,
      summary judgment is appropriate. Thus, a record that supports
      summary judgment either (1) shows the material facts are
      undisputed or (2) contains insufficient evidence of facts to make
      out a prima facie cause of action or defense.

Id. at 909.

While it is true that,

      [a] non-moving party may not rely merely upon controverted
      allegations in the pleadings, but must set forth specific facts by
      way of affidavit, or in some other way as provided by Pa.R.C.P.
      1035(b) [rescinded], demonstrating that a genuine issue exists




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Atkinson v. Haug, 622 A.2d 983, 985 (Pa. Super. 1993), this rule3 pre-

supposes that the non-moving party has been given the opportunity to

conduct discovery on the relevant issue. Here, the Riveras were afforded no

such opportunity.4

       Because there are no facts of record demonstrating who was driving

the Manzi car at the time of the accident, summary judgment was premature

and improper as a matter of law. Accordingly, the order granting summary

judgment must be reversed and this matter remanded for further action.5

       Order denying motion for leave to amend complaint is affirmed; order

granting summary judgment in favor of Manzi is reversed.       This matter is

remanded for further action in accordance with this decision.     Jurisdiction

relinquished.




____________________________________________


3
 Pa.R.C.P. 1035 was replaced in 1996 by Rules 1035.1-1035.6. In relevant
part, the new rule is 1035.3(a)(1)-(2).
4
  Manzi claims the Riveras implicitly agreed that he was not the driver of the
vehicle at the time of the accident by seeking to amend the complaint to add
negligent entrustment. By implicitly agreeing that he was not the driver,
Manzi argues discovery is unnecessary. This argument is unavailing because
the motion to amend states “Plaintiff’s proposed amended Complaint adds
alternative allegations of negligent entrustment against Mr. Manzi.” See
Motion for Leave to Amend, 12/31/2014, at ¶ 7 (emphasis added).
5
  While it may seem unlikely the Riveras will prevail on the issue of who was
driving, they must be given the opportunity to conduct discovery on the
issue, if they so desire.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




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