J-A01036-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

JANET ADAMS AND ROBERT ADAMS,           :   IN THE SUPERIOR COURT OF
HER HUSBAND                             :         PENNSYLVANIA
                                        :
                Appellants              :
                                        :
         v.                             :
                                        :
DAVID A. REESE AND KAREN C.             :
REESE,                                  :
                                        :    No. 927 WDA 2016
                Appellees               :

              Appeal from the Order Entered November 10, 2015
               in the Court of Common Pleas of Beaver County
                      Civil Division at No(s): 10571-2015

BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED MARCH 07, 2017

     Janet Adams and Robert Adams (collectively, the Adamses) appeal

from the November 10, 2015 order denying their motion to amend their

complaint, which was made final by the May 16, 2016 order dismissing all

claims against Appellees, David A. Reese and Karen C. Reese (collectively,

the Reeses).1 Upon review, we affirm.

     This case arises from a motor vehicle accident which occurred on May

12, 2013, between Janet Adams’s vehicle and a car owned by Karen Reese

and driven by the Reeses’ son, Dane M. Reese. Janet Adams averred she

sustained personal injuries and damages as a result of the collision.


1
  On December 30, 2015, the Adamses filed a petition seeking permission
from this Court to appeal the order denying their motion to amend their
complaint. This request was denied. See Order, 2/10/2016.


* Retired Senior Judge assigned to the Superior Court.
J-A01036-17


Complaint 5/5/2015, at 4 (unnumbered).             Negotiations between the

Adamses and the Reeses’s insurance company, Erie Insurance,2 proved

futile, and on May 5, 2015, a complaint was filed listing as defendants, David

A. Reese and Karen C. Reese, who were subsequently served by sheriff on

May 8, 2015.

        Specifically, the complaint named David as the driver, and alleged that

he as well as Karen were negligent in the operation/ownership of the vehicle.

Complaint, 5/5/2015.      On June 22, 2015, the Reeses filed an answer and

new matter, wherein they stated, inter alia, that David was not the operator

of the motor vehicle. The Reeses averred it was Dane, who was not named

as a defendant, driving the vehicle at the time of the accident.

        Thereafter, on November 1, 2015, the Adamses filed a motion for

leave to amend the complaint pursuant to Pa.R.C.P. 1033. In their motion,

the Adamses contended that a “typographical error” had mistakenly listed

the wrong first name of the driver of the vehicle.        Adamses Motion to

Amend, 11/1/2015, at 2 (unnumbered).         This motion was opposed by the

Reeses, who asserted that the Adamses were prohibited from amending

their complaint to add a new party because, inter alia, the statute of

limitations had run.     By order of court dated November 10, 2015, the

Adamses’ motion was denied.




2
    The insurance policy for the vehicle was issued to David and Karen Reese.



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      The Reeses subsequently filed a motion for summary judgment.

Following argument, the trial court granted summary judgment in favor of

the Reeses.    This timely appeal followed wherein the Adamses raise the

following issues for our review.

   1. Under the circumstances of this case did the [trial court] err
      and/or abuse its discretion in refusing to allow [the Adamses] to
      amend the [c]omplaint after the expiration of the statute of
      limitations to correct the misnomer of [the Reeses?]

   2. Did the [trial court] err and/or abuse its discretion in
      determining service of process on an adult individual at Dane
      Reese’s residence was not proper service on Dane Reese?

   3. Did the [trial court] err and/or abuse its discretion in
      determining Dane Reese was not properly before the [trial
      court?]

The Adamses’ Brief at xi (trial court response and suggested answers

omitted).

      Our standard of review is well-settled. “When reviewing a trial court’s

ruling on a petition to amend a complaint, we grant the trial court a broad

discretion in evaluating the petition. We will not disturb the sound discretion

of the trial court absent an abuse of discretion.” Diaz v. Schultz, 841 A.2d

546, 549 (Pa. Super. 2004) (citations and internal quotations omitted).

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will, as shown by the evidence
      of record, discretion is abused. We emphasize that an abuse of
      discretion may not be found merely because the appellate court
      might have reached a different conclusion, but requires a
      showing of manifest unreasonableness, or partiality, prejudice,



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      bias, or ill-will, or such lack of support as to be clearly
      erroneous.

Carter v. May Dep't Store Co., 853 A.2d 1037, 1040 (Pa. Super. 2004)

(citations omitted).

      Although set forth as several distinct issues, on appeal the Adamses

essentially challenge the trial court’s denial of their motion to amend for the

following reasons: (1) a new party was not being added; (2) service was

properly made at Dane Reese’s address; and (3) the amendment sought by

the Adamses was merely correcting the first name of the driver.            The

Adamses’ Brief at 9-14.

      At the outset we note that “[a] party, either by filed consent of the

adverse party or by leave of court, may at any time change the form of

action, add a person as a party, correct the name of a party, or otherwise

amend the pleading.” Pa.R.C.P. 1033.

      This rule has repeatedly been interpreted as requiring the liberal
      evaluation of amendment requests in an effort to determine
      cases based upon their merits rather th[a]n a mere technicality.
      The operative test therefore, is whether the right party was sued
      but under a wrong designation, or whether [the] wrong person
      was sued and the amendment was designed to substitute
      another and distinct party. … An amendment is permitted in the
      former situation but not in the latter.

Hamilton v. Bechtel, 657 A.2d 980, 981 (Pa. Super. 1995) (quotation

marks and citations omitted).

      The trial court, in denying the Adamses’ request to amend their

complaint, offered the following analysis:



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            [The Adamses] argue that changing the complaint would
     not result in adding a new party, but instead would only correct
     a typographical error. [The trial court] must disagree. The
     [Pennsylvania] Supreme Court has had occasion to rule on a
     factually analogous case in [Saracina v. Cotoia, 208 A.2d 764,
     766 (Pa. 1965)]. That case also involved a plaintiff suing the
     father and owner of a vehicle instead of the son and operator of
     the vehicle. The court concluded that permitting the plaintiff to
     amend the complaint would amount to the addition of a new and
     distinct[] party and would essentially “modify the statute of
     limitations which this Court cannot and should not do.”
     [Saracina], 208 A.2d 766.

            [Our] Supreme Court confirmed this ruling in another case
     and further held that while the facts indicated that the plaintiffs
     clearly intended to sue the son and operator of the car, they in
     fact sued the father and could not amend their complaint after
     the statute of limitations had expired. [Piehl v. City of
     Philadelphia,] 987 A.2d 146, 156 (Pa. 2009). In [Piehl], the
     Court permitted the amendment of a complaint when the
     plaintiff named the Commonwealth of Pennsylvania as a
     defendant but failed to include the Department of Transportation
     in the caption, but included several allegations naming the
     Department of Transportation throughout the complaint and
     served the Department of Transportation with the complaint.
     The Court distinguished this from [Saracina,] noting that in
     [Saracina,] the son was never served with the complaint and
     not mentioned by name in the complaint; the plaintiff sued the
     father Anthony Cotoia, when he intended to sue the son, Robert
     Cotoia. ,

            [The Adamses] captioned this case with David A. Reese’s
     name and served David A. Reese. [The Adamses] did not
     merely misspell Dane M. Reese’s name, but instead sued another
     natural person. Whether [the Adamses] intended to sue Dane
     M. Reese is immaterial for the purposes of this motion; David A.
     Reese is currently before the court, and to permit [the Adamses]
     to amend the complaint to include Dane M. Reese’s name would
     be to allow [the Adamses] to add a new and distinct party. For
     these reasons we conclude that [the Reeses] may not amend the
     complaint to add the proper defendant after the statute of
     limitations had run.

Trial Court Order, 11/1/2015 at 2 (unnumbered, some citations omitted)


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J-A01036-17


      Upon review, we discern no error in the trial court’s analysis and find

the trial court’s conclusion that the Adamses could not amend their

complaint is in line with our case law, as set forth supra. In finding no error,

we reject the Adamses’ argument that the motion to amend sought to

correct a mere “typographical error.” We agree with the trial court that the

Adamses listed a completely different person as a defendant and therefore,

allowing the complaint to be amended after the statute of limitations had run

would be permitting the Adamses to add a new and distinct party, which our

case law expressly disallows.

      The Adamses attempt to distinguish this case from Saracina, wherein

our Supreme Court stated that “[i]f the right party was in court as the

result of service of process and it was merely his or its designation which

was sought to be changed, we would be prone to permit the amendment.”

Saracina, 208 A.2d at 766 (emphasis in original). The Adamses aver that

because service was made upon an adult member of Dane’s household,

service was proper and thus, Saracina is distinguishable.        We disagree.

Even assuming arguendo that the Adamses could prove service on Dane was

proper, Dane was not in court as a result of the service.           Sarcacina

specifically stated that they would be inclined to permit amendment if as a

result of service “the right party was in court.”        Id.   Here, the only

responsive pleading to the complaint was made on the behalf of David and

Karen.



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J-A01036-17


      Lastly, we are cognizant that the averments set forth in the complaint

suggest that the Adamses did intend to sue Dane, the operator of the

vehicle, and not his father David.   Nonetheless, our case law is clear that

under these very circumstances, amendment is not permitted.             See

Saracina, 208 A.2d at 766 (“While there are strong indications in this case

that Saracina intended to bring suit against the operator of the vehicle,

Robert Catoia, [including referencing Robert’s father, Anthony as a minor

and stating that the negligence was caused by the operator of the vehicle,]

an amendment of the complaint, after the statute of limitations has run, to

bring in a new and distinct party to the action cannot be permitted[.]”

(footnote omitted).

      Thus, having concluded the trial court did not abuse its discretion in

denying the motion to amend their complaint, the Adamses are entitled to

no relief from this Court.3

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2017


3
 Admittedly, this is a harsh result, but unless and until our Supreme Court
overrules Saracina, it is compelled.


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