J-A23010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN FLANAGAN                            :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   Appellant              :
                                          :
                                          :
             v.                           :
                                          :
                                          :
MINE RUN, INC. D/B/A EAGLE                :     No. 187 EDA 2017
STREAM APARTMENTS,                        :

             Appeal from the Order Entered December 14, 2016
            In the Court of Common Pleas of Montgomery County
                     Civil Division at No(s): 2015-31734


BEFORE:    PANELLA, J., DUBOW, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 20, 2017

      Perhaps surprisingly, one of the most dangerous tasks a plaintiff faces

in asserting a premises liability claim is correctly identifying the party in

possession of the property at issue. Mere ownership of the property in the

public record is not equivalent to being in possession of the property. Also,

in an age of ever increasing and changing corporate forms, a plaintiff must

be careful to identify the proper entity, whose name may vary only slightly

from several related, but distinct, entities.

      And yet it should be unsurprising just how necessary identifying the

correct party is in the legal system. A person or business entity cannot be

held liable for actions legally attributable to another. And the statutory grant

of limited liability to corporate forms would be rendered hollow if the courts



____________________________________
* Former Justice specially assigned to the Superior Court.
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did not strictly enforce the legal distinction between corporate entities and

their principals.

      The issue is thrown into stark relief when the issue of the statutory

deadline for filing a claim comes to the fore. A plaintiff who has incorrectly

designated a defendant may not be allowed to correct its mistake if the error

is not discovered until after the statutory deadline has passed. In turn, this

provides incentives for related entities to engage in gamesmanship in raising

the issue of an incorrect designation. Thus, there is a long-running tension in

our law between respecting the statutory grants of limited liability and

deadlines for initiating a claim on the one hand, and discouraging bad faith

gamesmanship on the other.

      This tension is plainly at play in the appeal currently before us.

Appellant Brian Flanagan claims he was injured after slipping on unsalted

stairs at a housing complex known as Eagle Stream Apartments. For our

purposes, it is undisputed the name “Eagle Stream Apartments” is a

fictitious name. See Appellant’s Brief, at 11; Appellee’s Brief, at 3.

      The record before us is unclear, but after his fall, Flanagan must have

communicated with the operators of Eagle Stream Apartments and learned it

held a premises liability policy issued by Greater New York Insurance

Company     (“GNY”).   We   draw    this   inference   from   several    pieces   of

correspondence that GNY sent to Flanagan’s counsel in the two years

following his fall.


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       First, GNY sent counsel a letter requesting further information about

the incident to allow GNY to review Flanagan’s claim. This letter requested

Flanagan’s personal information as well as all medical records from the

incident. Furthermore, it instructed counsel “[u]nder penalty of spoliation[1]

please preserve all physical evidence (shoes, clothing, photos, videos, etc…)”

       Slightly over a year later, and approximately two months before the

statutory deadline for filing suit, GNY sent counsel a letter indicating its

investigation revealed “its insured was not liable as to this loss.” In the

letter’s header, GNY identified its insured as Eagle Stream Trust.

       Shortly thereafter, Flanagan filed his initial complaint. He identified the

defendant as “Mine Run, Inc., d/b/a Eagle Stream Apartments.” The

complaint was served on “Eagle Stream Apartments” at the office for Eagle

Stream Apartments approximately one month prior to the filing deadline.

Pursuant to the Rules of Civil Procedure, Mine Run was required to file

preliminary objections or an answer to the complaint by January 11, 2016.

In its preliminary objections filed on January 26, 2016, Mine Run argued

Flanagan had failed “to allege any factual basis in support of the allegation



____________________________________________


1“‘Spoliation of evidence’ is the non-preservation or significant alteration of
evidence for pending or future litigation.” Pyeritz v. Commonwealth of
Pennsylvania, 32 A.3d 687, 692 (Pa. 2011), citing West v. Goodyear Tire
& Rubber Co., 167 F.3d 776, 779 (2d Cir.1999).




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that   Defendant    was    responsible    for     the   ‘ownership,’   ‘maintenance,’

‘possession,’ or ‘control’ of ‘that location.’”

       Flanagan responded by filing a first amended complaint eighteen days

after the statute of limitations had run. Flanagan amended the complaint by

removing “Mine Run, Inc.,” thereby naming “Eagle Stream Apartments” as

the defendant. Furthermore, he conceded that pursuant to his investigation,

Eagle Stream Apartments was operated by an entity known as Eagle Stream

Trust. Flanagan thus argued his amendment was merely a correction and did

not name a new entity as a defendant beyond the deadline imposed by the

statute of limitations.

       Interestingly, Mine Run continued to engage in this litigation, even

though Flanagan had removed it as an explicit defendant. For instance,

counsel for Mine Run filed untimely preliminary objections to the amended

complaint, asserting Flanagan had failed to seek or gain permission from

Mine Run or the court, as required under the Rules of Civil Procedure, before

filing the amended complaint.

       Flanagan later sought leave of court to file a second amended

complaint, substantially similar to the first amended complaint. Counsel for

Mine Run continued to oppose Flanagan’s efforts, despite the fact that, by its

own admission, the amended complaint would remove Mine Run from the

case. Ultimately, the court denied Flanagan’s request for leave to file the

second amended complaint. Furthermore, the court dismissed Mine Run’s


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objections to the first amended complaint. Thus, the first amended

complaint became the operative pleading.

        Counsel for Mine Run filed an answer and new matter to Flanagan’s

first amended complaint. However, the caption did not reflect the caption to

the first amended complaint, but rather the caption of Flanagan’s initial

complaint. This distinction is significant because, as noted, the first amended

complaint does not identify Mine Run explicitly, while the initial complaint

did. Despite the fact the first amended complaint did not name Mine Run as

a defendant, Mine Run asserted “Eagle Stream Apartments is in no way

associated with Defendant [sic] Mine Run, Inc., nor is it a fictitious name

registered to Mine Run, Inc.” Furthermore, Mine Run asserted that

Flanagan’s claims were barred by the applicable statute of limitations.

        Mine Run subsequently filed for summary judgment, once again

maintaining the caption from the initial complaint that explicitly named it as

a defendant. Mine Run again asserted that it was “in no way connected with

Eagle Stream Apartments[.]” Furthermore, it admitted Flanagan’s first

amended complaint “omitted “Mine Run, Inc.” from the caption and instead

purported to assert claims against “Eagle Stream Apartments[.]” Mine Run

also acknowledged that the first amended complaint asserted “that an entity

other    than   Mine   Run,   Inc.   operates   Eagle   Stream   Apartments[.]”

Nonetheless, Mine Run filed the motion seeking summary judgment on




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Flanagan’s claims against an entity with which it had consistently denied

being associated.

      The court granted summary judgment in a one sentence order. The

order did not explicitly identify the reasoning supporting the decision.

Flanagan filed this timely appeal.

      In its opinion on appeal, the court takes issue with the prolix nature of

Flanagan’s concise statement of matters complained of on appeal pursuant

to Pa.R.A.P. 1925(b). Certainly, Flanagan’s statement, which covers twelve

pages, is anything but concise, especially considering the limited nature of

the issues raised in the motion for summary judgment.

      Flanagan argues the trial court’s lack of reasoning in the record for

granting summary judgment forced him to expand his statement. We direct

counsel’s attention to Pa.R.A.P. 1925(b)(4)(vi), which addresses just this

situation:

      If the appellant in a civil case cannot readily discern the basis for
      the judge’s decision, the appellant shall preface the Statement
      with an explanation as to why the Statement has identified the
      errors in only general terms. In such a case, the generality of
      the Statement will not be grounds for finding waiver.

      Regardless, it is also clear Flanagan did not seek to raise a multitude

of issues. Nor did Flanagan fail to identify the basis of the argument he

raises on appeal. This much is confirmed by the trial court’s discussion of the

application of the statute of limitations in its opinion on appeal. Under these




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circumstances, we decline to find Flanagan has waived the argument he

raises on appeal. We therefore turn to the substance of Flanagan’s appeal.

      Flanagan has appealed from the court’s grant of summary judgment.

We review a challenge to the entry of summary judgment as follows:

      [We] 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. See Pa.R.C.P., Rule 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 may be entered. Where the nonmoving
      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 he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review the
      record in the light most favorable to the nonmoving party, and
      all doubts as to the existence of a genuine issue of material fact
      must be resolved against the moving party.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original).

      The legal issue in this case involves the interplay of the statute of

limitations with the Rules of Civil Procedure. Generally, a plaintiff may

amend a complaint to correct a name or even add a new party, so long as

he obtains consent from the adverse party or leave of court. See Pa.R.C.P.

1033. “Leave to amend … should be liberally granted at any stage of the

proceedings unless there is an error of law or resulting prejudice to an


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adverse party.” Hill v. Ofalt, 85 A.2d 540, 557 (Pa. Super. 2014). The rule

of liberal leave to amend is premised upon a preference to have claims

decided on their merits as opposed to strict enforcement of legal

technicalities. See id.

      Liberal leave to amend, however, does not apply after the deadline

imposed by the statute of limitations for the claim has passed. See, e.g.,

Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1132 (Pa. Super. 2001).

This exception is necessary, as allowing amendment of claims after the

deadline renders statutes of limitation meaningless. Generally, amendments

that violate the applicable statute of limitation are to be denied. See id.

      Pennsylvania courts have long sought to derive a rule that synthesizes

these competing policies, sometimes with contradictory results. However,

the current version of Rule 1033, which became effective on April 8, 2017,

after this appeal was filed, represents the most developed solution to this

conflict. It provides that an amendment correcting the name of a party after

the deadline imposed by the statute of limitations is permissible so long as

three conditions are met: (1) the affected party is given notice of the action

within ninety days of the statutory deadline; (2) the affected party is not

prejudiced in maintaining its defense on the merits; and (3) the affected

party knew or should have known that it was the intended defendant despite

the mistake in the original complaint. See Pa.R.C.P. 1033(b).




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      The Explanatory Comment to the 2017 amendment states that it “is

consistent with existing case law and codifies current practice.” Thus, the

2017 amendment was not intended to introduce a new rule. Our review of

existing precedent comports with the Explanatory Comment.

      In 2006, this Court addressed an appeal with similar circumstances.

See Clark v. Wakefern Food Corp., 910 A.2d 715 (Pa. Super 2006).

Plaintiff Clark filed and served a slip-and-fall complaint against “Wakefern

Food Corporation t/a Shop Rite #411.” Id., at 717. “As it turns out, the

Shop Rite in question was not owned by Wakefern, a New Jersey

Corporation, but instead by a different entity.” Id.

      The trial court denied Clark leave to amend her complaint to correct

the name of the defendant to “Trio Food Centers, Inc.” Id., at 716 n.1. Clark

appealed, and the panel held:

      It is not disputed that service was properly made at the store
      where the alleged slip and fall took place.

      …

      The defendant in this case is certainly the Shop Rite store upon
      whose property Clark allegedly fell. It is undisputed that the
      store is operating as a Shop Rite supermarket. Although the
      number of the store may or may not have been correct in the
      caption, “Shop Rite” was served and the owner and operator of
      the store is using the corporate name, “Shop Rite.” Therefore,
      under [Pa.R.C.P. 2176 and 2177], there was proper service on
      the corporate owner of the store.

      …

      In the instant case, it is the assets of the entity operating a Shop
      Rite at 301 West Chelten Avenue, sued as Shop Rite # 411,

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      which are subject to liability. While Wakefern should not be
      subject to liability, the true owner of the store where the
      manager accepted service and the insurance carrier started
      processing the claim should be. … When the owner of the store
      wants its customers to think they are at a “Shop Rite,” and a
      customer later sues “Shop Rite” and makes service on the very
      store premises by serving the person in charge, the actual
      corporate entity created to own the store should not be heard to
      complain. To find otherwise would contradict the purpose of
      Pa.R.C.P. 2177, which permits service on a business entity by
      the name under which it does business and advertises to the
      public.

      Therefore, although Wakefern may be dismissed from the
      complaint, we are constrained to reverse and remand for the
      amendment of the complaint. The defendant store may then file
      an answer or other pleading, containing the actual name of its
      corporate owner.

Id., at 716-717 (order rearranged for readability; emphasis supplied).

      Thus, the panel held the owner of the Shop Rite had notice of the

claim before the statutory deadline, and was aware that it was the intended

defendant despite the mistake in the initial complaint. Contrary to current

Rule 1033, the panel did not explicitly address whether the owner had been

prejudiced in its ability to defend on the merits. This is understandable, as

that party had not been explicitly identified yet. See id., at 716 n.1.

Instead, the panel focused on whether the assets subject to liability had

been modified.

      We do not believe that anything contained in Clark is contradicted by

the current version of Rule 1033. Ultimately, even if there is a conflict,

Flanagan is due relief on appeal under either test.




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        Here, Mine Run has not disputed service was effectuated at the “Eagle

Stream Apartments” where Flanagan allegedly fell. Furthermore, the proper

defendant in this case is certainly the “Eagle Stream Apartments” upon

whose property Flanagan allegedly fell. Although Flanagan misidentified the

corporate owner of the fictitious name of “Eagle Stream Apartments,” “Eagle

Stream Apartments” was served and the owner and operator of the property

is using the name “Eagle Stream Apartments.” Therefore, under the Rules of

Civil Procedure, there was proper service upon the owner and operator of

Eagle Stream Apartments. Furthermore, the assets subject to liability are,

and have been, the assets of the owner of Eagle Stream Apartments. As

such,    pursuant   to   Clark,   Flanagan’s   first   amended   complaint   was

appropriate under the applicable version of Rule 1033.

        Similarly, it is undisputed that Flanagan’s first amended complaint was

filed within 90 days of the deadline imposed by the statute of limitations.

The owners and operators of Eagle Stream Apartments have known that

they were the intended defendants despite Flanagan’s mistake in the initial

complaint. Indeed, the fact that counsel for Mine Run has been asserting

defenses on behalf of unknown party(ies) indicates that the owner and

operator have been kept fully apprised of this proceeding. The delay in filing

preliminary objections to the initial complaint, despite the apparently

obvious error, certainly suggests a coordination of strategy between Mine

Run and the owner and operator. Thus, we would conclude Flanagan’s first


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amendment was proper pursuant to the current, but technically not

applicable, version of Rule 1033.

       Mine Run is certainly entitled to be dismissed as a defendant, based

upon the record currently before us. But the owner and operator of Eagle

Stream Apartments at the time of Flanagan’s fall is not.2

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

       Justice Fitzgerald joins the memorandum.

       Judge Dubow files a dissenting statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




____________________________________________


2 It appears at this point that Eagle Stream Trust was the owner of the
property upon which Eagle Stream Apartments is located at the time of
Flanagan’s alleged fall. It is not clear at this point whether Eagle Stream
Trust was in possession of the property at that time.



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