J-S43041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PEGGY SUE LAPENZ AND RAYMOND F.                IN THE SUPERIOR COURT OF
    LAPENZ                                               PENNSYLVANIA

                            Appellants

                       v.

    DUSTIN TIFFANY A/K/A DUSTIN BRINK
    AND DAVID TIFFANY AND CHERYL
    TIFFANY
                                                        No. 245 WDA 2017


               Appeal from the Judgment Entered January 5, 2017
                  In the Court of Common Pleas of Erie County
                       Civil Division at No(s): 2012-11716

BEFORE: STABILE, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                  FILED: SEPTEMBER 29, 2017

        Appellants, Peggy Sue Lapenz and Raymond F. Lapenz, appeal from the

judgment entered in the Erie County Court of Common Pleas after the trial

court granted summary judgment in favor of Appellees, Dustin Tiffany a/k/a

Dustin Brink and David Tiffany and Cheryl Tiffany. Appellants contend the

trial court erred when it denied the motion to amend their complaint based on

expiration of the statute of limitations. We affirm.

        The trial court summarized the factual and procedural history as follows:

              On June 9, 2010, Peggy Sue Lapenz [] was involved in a
           car accident in Lowville Township. At the intersections of
           Routes 8 and 89, [Ms. Lapenz] brought her vehicle to a stop
           at a “[y]ield” sign. One of the [Appellees] is Dustin Tiffany
           a/k/a Dustin Brink (“Dustin”). Dustin has a twin brother,

*   Former Justice specially assigned to the Superior Court.
J-S43041-17

       Justin Brink []. On the day of the accident, purportedly[,]
       Justin Brink (“Justin”) approached the intersection behind
       [Ms. Lapenz]. Justin allegedly struck the rear bumper of
       [Ms. Lapenz’s] vehicle causing a dent in the bumper of her
       vehicle.

           At the scene of the accident, [Ms. Lapenz] and Justin
       exchanged identity and insurance information.            The
       insurance card provided by Justin listed David and Cheryl
       Tiffany as the owners of the insurance policy on the vehicle.
       Justin Brink told [Ms. Lapenz] his name was “Justin.” The
       police were not summoned. As a result, a police report was
       not filed.

          [Ms. Lapenz] took notes at the scene of the accident and
       wrote down Justin’s name as the driver. [Ms. Lapenz] filed
       a claim for first party medical benefits with her insurer, Erie
       Insurance Exchange (“Erie”).

          Meanwhile, Justin told his mother and stepfather, David
       and Cheryl Tiffany, about the accident. The Tiffanys were
       also insured with Erie. On June 10, 2010, David Tiffany
       informed his liability adjustor at Erie that Justin was
       involved in an accident with [Ms. Lapenz’s] vehicle. The
       Claims Management System Auto Loss Report dated
       6/10/2010 states:

          PAM HOLMES ADJUSTOR — JUSTIN FOLLOWING
          PEGGY LAPENZ ENTERED YIELD AREA FROM RT 8
          ONTO RT 89 WATTSBURG — JUSTIN THOUGHT PEGGY
          PROCEEDED TO PULL ONTO RT 89 — HE LOOKED FOR
          TRAFFIC — SHE HAD NOT LEFT AREA AND JUSTIN
          BUMPED PEGGY’S DRIVER SIDE REAR BUMPER — NO
          DAMAGE VISIBLE TO EITHER DRIVER & THEY LEFT
          THE SCENE — INSD NO COLL COVERAGE THIS IS PD
          ONLY. DAVE TIFFANY — XFILE PAM HOLMES.

          On 6/11/2010, the liability adjustor at Erie took a
       statement from Justin Brink over the phone regarding his
       version of the accident.          Justin’s statement was
       memorialized in a Claims Management System File Note
       Detail which states, in part: “ON 6-11-10 I OBT’D A R-S OF
       JUSTIN BRINK OVER THE PHONE.”



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J-S43041-17

          Before this lawsuit was filed, [Ms. Lapenz] had informal
       contact with her first party medical adjustor at Erie, Sharon
       Russell. She also had contact with Tracy Krepps, the liability
       adjustor at Erie handling [Ms. Lapenz’s] claim against the
       Tiffanys. [Ms. Lapenz] was able to have these contacts
       because she also works at Erie albeit in a different
       department.

          [Ms. Lapenz] works with both a “Dustin” and a “Justin”
       and sometimes confuses the two. This fact prompted her to
       contact [Ms.] Russell to verify the name of the driver who
       hit her. [Ms. Lapenz] was advised by [Ms.] Russell the
       driver was Dustin. It is unclear how [Ms.] Russell concluded
       the driver was Dustin when the information conveyed to Erie
       indicated Justin was the driver.

           In early April, 2012, counsel for [Ms. Lapenz] sent a letter
       of representation to Erie “with regard to the injuries suffered
       by Ms. Lapenz as a result of the negligence of your insured’s
       son, Dustin, on June 9, 2010 . . . ”. There was no response
       from Erie correcting the name of Dustin to Justin.

           [Appellants] initiated this action by [w]rit of [s]ummons
       on May 10, 2012. Named as defendants on the [w]rit were
       [Appellees,] David Tiffany, Cheryl Tiffany, and Dustin
       Tiffany, a minor. On May 29, 2012, service of these [w]rits
       was effectuated, in part, by Erie County Sheriff Deputy
       David Orr at the home of . . . Cheryl and David Tiffany, in
       Corry, Pennsylvania. David Tiffany answered the door.
       Deputy Orr advised he was serving three sealed envelopes,
       one each for “David Tiffany,” “Cheryl Tiffany,” and “Dustin
       Tiffany, a minor.” David Tiffany accepted possession of the
       three sealed envelopes from Deputy Orr.

          David Tiffany informed Deputy Orr that Dustin’s correct
       name is “Dustin Brink.” [David] Tiffany also informed
       Deputy Orr that Dustin Brink no longer lives in their home
       and provided Dustin’s address at 1909 Abbey Lane in the
       City of Erie. Deputy Orr returned the [w]rit as “[u]nserved”
       upon Dustin Tiffany.

          A File Note Detail in Erie’s records, entered by [Ms.]
       Krepps, reflects that Erie was advised on May 30, 2012, by



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J-S43041-17

        David Tiffany he had been served with [w]rits of [s]ummons
        including one for Dustin Tiffany, a minor.

           On June 7, 2012, [two days before the statute of
        limitations for the accident expired,1 Appellants] filed an
        [a]mended [w]rit of [s]ummons changing the caption to
        “Dustin Tiffany a/k/a Dustin Brink, a minor.” The [w]rit was
        returned as “[u]nserved” at the Erie address by the Erie
        County Sheriff’s Department.

          A File Note Detail in the Erie liability file states that an
        amended [w]rit was filed on June 7, 2012, which incorrectly
        named Dustin as the driver. The File Note Detail, Updated
        Review of Writ, authored by [Ms.] Krepps states, in part:

           OUR INSURED DRIVER IS JUSTIN BRINK, NOT
           DUSTIN BRINK.   IT APPEARS THIS WAS FILED
           INCORRECTLY[.] HOWEVER, I HAVE NOT BEEN ABLE
           TO SPEAK WITH CLMT ATTY TO VERIFY THIS.

          On December 21, 2012, [Appellants] filed a [c]omplaint
        against “Dustin Tiffany a/k/a[] Dustin Brink, David Tiffany
        and Cheryl Tiffany, Defendants.”[2] There is no evidence


1The statute of limitations expired on June 9, 2012. See 42 Pa.C.S. § 5524(2)
(An action to recover damages for injuries to the person or for the death of
an individual caused by the wrongful act or neglect or unlawful violence or
negligence of another must be commenced within two years).

2 Appellees filed preliminary objections on January 3, 2013, which were
granted on March 4, 2013. Although the trial court stated that Appellees did
not file an answer, the record reveals Appellees filed an answer with new
matter on July 15, 2014, which states, in pertinent part:

        The vehicle that bumped the rear of plaintiff’s car was not
        being operated by defendant Dustin Brink. Rather, the
        vehicle was being operated by Justin Brink, another of
        defendant Cheryl Tiffany’s children.

        Defendant Cheryl Tiffany is not an owner of the vehicle that
        was being driven by Justin Brink at the time of the accident.




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J-S43041-17

         that either Dustin or Justin have been served with the
         [c]omplaint.

Trial Ct. Op., 11/6/14, at 1-4 (citations omitted).

      On August 1, 2014, Appellants filed a motion to amend the complaint.

They sought to remove Cheryl Tiffany as a defendant, add Justin as a

defendant, and restate the allegations against Dustin “to reflect his potential

liability as an owner of the vehicle involved in the accident.” Appellants’ Mot.

to Am. Compl., 8/1/14, at 6.        On September 30, 2014, the trial court

conducted a hearing, and on November 6, 2014, the trial court denied

Appellants’ motion because it was filed after the statute of limitations expired.

Thereafter, Appellees filed a motion for summary judgment, which was

granted on January 5, 2017.3




         The vehicle that was being driven by Justin Brink was owned
         by defendants David Tiffany and Dustin Brink.

Appellee’s Answer, 7/15/14, at 4.

3The trial court did not issue a further opinion on the order granting Appellees’
motion for summary judgment. Rather, it relied on its November 16, 2014
opinion explaining its denial of Appellants’ motion to amend.




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J-S43041-17

      Appellants timely appealed4 and filed a Pa.R.A.P. 1925(b) statement.5

Appellants raise the following issues for our review:

         I. Whether the trial court abused its discretion in denying
         the Appellants’ motion to amend their complaint?

         II. Whether the trial court committed an error of law in
         concluding that Appellees preserved the argument of
         “different policy/different adjustor” when it was raised for
         the first time at the evidentiary hearing on Appellants’
         motion to amend their complaint?


Appellants’ Brief at 4 (capitalization omitted).

      Our standards of review are as follows:

         The decision of the trial [c]ourt to deny a motion to amend
         a complaint is within the sound discretion of the trial court,
         and the trial court’s determination will not be disturbed
         absent an abuse of that discretion.


4 In some circumstances, an order denying a motion to amend a complaint
may be a final, appealable order. See McClean v. Djerassi, 84 A.3d 1067,
1071 (Pa. Super. 2013) (plaintiff’s original complaint was void and of no effect
because it was filed against a deceased individual; thus, as there were no
outstanding claims, order denying plaintiff’s motion to amend complaint to
substitute dead person’s estate constituted final, appealable order). Here,
however, the order denying the motion to amend was not final and appealable,
because Appellants’ claims against the original defendants remained intact.
See Pa.R.A.P. 341(b)(1) (final order disposes of all claims and all parties).
The final order in this case was the summary judgment order in favor of the
original defendants. Because Appellants timely appealed from this order, this
appeal is proper. See Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1131
(Pa. Super. 2001).

5 We note that Appellants raised nineteen issues in their Rule 1925(b)
statement; however, we will proceed to the merits of this appeal. See Eiser
v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 427-28 (Pa. 2007)
(Baldwin, J., plurality) (“[T]he number of issues raised in a Rule 1925(b)
statement does not, without more, provide a basis upon which to deny
appellate review where an appeal otherwise complies with the mandates of
appellate practice.”).


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J-S43041-17



            On an appeal from a grant of summary judgment, a
         reviewing court must examine the record in a light most
         favorable to the nonmoving party, accepting as true all well-
         pleaded facts and giving that party benefit of all reasonable
         inferences which can be drawn from those facts. As our
         Court has stated previously:

            Summary judgment may be properly entered only
            where (1) there is no genuine issue of material fact as
            to a necessary element of the cause of action which
            could be established by additional discovery or an
            expert report, or (2) after completion of discovery and
            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.

            A trial court’s decision to grant summary judgment will
         be overturned only if there has been an error of law or clear
         abuse of discretion. Our scope of review in these matters is
         plenary.    Thus, we are not bound by a trial court’s
         conclusions of law; instead, we may draw our own
         inferences and reach our own conclusions.


Ferraro, 777 A.2d at 1132 (citations omitted).

      Appellants first argue that the statute of limitations should be tolled to

allow them to amend their complaint based on Appellees’ active concealment

of the driver’s—i.e., Justin’s—identity. Appellants allege three instances of

active concealment: 1) “Erie advised [Ms. Lapenz] that the driver of the

vehicle . . . had a first name of Dustin[, Justin’s twin]”; 2) “Erie later failed to

correct the [Appellants’] counsel’s identification in a written correspondence

to it of ‘Dustin’ as the party whose negligence caused the injuries to [Ms.

Lapenz]”; and 3) “David Tiffany[] failed to inform the serving deputy upon




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J-S43041-17

service of the writs that Justin Brink not Dustin Brink was the driver of the

vehicle that struck [Ms. Lapenz] even though he knew that Justin caused the

at-issue accident.” Appellants’ Brief at 12. Appellants conclude that the trial

court erred in denying its motion to amend. We disagree.

      It is well settled that

         [a] plaintiff may not add a new defendant after the
         applicable statute of limitations has expired.[6] Thus, in
         cases where the statute of limitations has expired and a
         party seeks to amend its pleading to correct the name of [a]
         party, the issue is whether the proposed amendment adds
         a new party to the litigation or merely corrects a party
         name.

                                  *    *    *




6 Pa.R.C.P. 1033 states, inter alia, that “A party either by consent of the
adverse party or by leave of the court, may at any time . . . add a person as
a party.” Pa.R.C.P. 1033 (subsequently amended eff. Apr. 1, 2017). The
current version of Rule 1033, which does not apply in this case, provides:

         An amendment correcting the name of a party against
         whom a claim has been asserted in the original pleading
         relates back to the date of the commencement of the action
         if, within ninety days after the period provided by law for
         commencing the action, the party received notice of the
         institution of the action such that it will not be prejudiced in
         maintaining a defense on the merits and the party knew or
         should have known that the action would have been brought
         against the party but for a mistake concerning the identity
         of the proper party.

Pa.R.C.P. 1033(b) (eff. Apr. 1, 2017). The comments provide “The interests
of justice are served by a rule of civil procedure permitting a party to correct
a complaint that provides an incorrect name of a party when there is no
prejudice to the party brought in by the amendment.” Id., 2017 Explanatory
Cmts. However, “[t]he [2017] amendment of Rule 1033 does not alter the
concealment doctrine and the discovery rule.” Id.


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J-S43041-17

            If the proper party was sued but under the wrong
         designation, the correction will be allowed. However, where
         the wrong defendant was sued and the amendment is
         designed to substitute another, distinct party, it will be
         disallowed.

Ferraro, 777 A.2d at 1132-33 (citations omitted).

             Where a defendant or his agents actively mislead a
         plaintiff as to who are the proper defendants until after the
         statute of limitations has expired, the proper remedy is to
         toll the statute of limitations as to the defendant regarding
         whom the concealment was directed.                 Intentional
         concealment of the identity of the proper defendant is not
         necessary. All that is required is that the evidence establish
         that one party actively misled another party.

Diaz v. Schultz, 841 A.2d 546, 549 (Pa. Super. 2004) (citations, quotations,

and ellipsis omitted).

      In DeRugeriis v. Brener, 348 A.2d 139 (Pa. Super. 1975), we held the

plaintiff was entitled to amend his complaint to add a new party after the

statute of limitations expired. Id. at 140. The parties in DeRugeriis were

involved in a motor vehicle accident. Id. Following the accident, they pulled

their vehicles onto a neighboring property. Id. The property owner witnessed

the parties exchange identification, wrote down the names that were given at

the scene on a piece of paper, and gave the paper to the plaintiff. Id. Based

on this exchange, the plaintiff misidentified the defendant’s father rather than

the defendant as a party to the action. Id. at 139. The defendant’s father,

the plaintiff’s father, and the defendant’s insurance company communicated

with one another. Id. at 140. However, it was not until after the statute of

limitations expired that the defendant’s father filed an answer that correctly


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J-S43041-17

identified the defendant as the driver. Id. at 139-40. The trial court granted

the plaintiff leave to amend the pleadings, but subsequently granted judgment

on the pleadings based on the statute of limitations. Id.

        The DeRugeriis court concluded the statute of limitations for the

underlying action was tolled, and stated, “[i]n the case before us, [the

defendant] did not supply [the plaintiff] with the correct information as to his

name; nor did his father; nor did his insurance carrier. . . . The true identity

of the driver was withheld until [the] defendant answered the original

complaint.”     Id. at 140.     Accordingly, we reversed the trial court and

remanded for trial. Id.

        In Ferraro, this Court found no active concealment as would permit the

plaintiffs to add a new party after the statute of limitations expired. Ferraro,

777 A.2d at 1136. There, a pedestrian was struck by a vehicle. Id. at 1130.

The police arrived at the scene and prepared a report, which correctly

identified the driver. Id. A claims adjustor for the driver’s insurance company

wrote multiple letters to the plaintiffs’7 counsel referencing the driver’s wife

as the insurance policyholder. Id. The plaintiffs’ complaint named the driver’s

wife as a defendant instead of the driver.       After the statute of limitations

expired, the driver filed an answer with new matter which specifically denied

that his wife was the proper defendant. Id. at 1130-31. The plaintiffs filed a

motion to amend the complaint, which was denied. Id. at 1131. The trial


7   The plaintiffs included the pedestrian and his wife.


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J-S43041-17

court granted summary judgment for the defendant, and in the appeal by the

plaintiffs, we affirmed. Id. at 1131, 1137.

      Relying on DeRugeriis, the plaintiffs in Ferraro asserted that the

defendant’s insurance company tailored its written correspondence to mislead

the plaintiffs into believing that the driver’s wife was the proper defendant.

Id. at 1135. The plaintiffs further contended “it was reasonable not to rely”

on the police report’s reference to the driver, because “incident reports often

contain mistakes . . . .” Id. (quotations omitted). The Ferraro Court found

DeRugeriis distinguishable, noting that the defendant in DeRugeriis “had

actively concealed the true identity of the driver and even went so far as to

supply the plaintiff with an incorrect name for the driver.” Id. In contrast,

the driver in Ferraro was “correctly named in the police report.” Id. at 1135.

The Ferraro Court concluded: “Simply put, there can be no concealment by

the named defendant where the driver is correctly named in the police report.”

Id. at 1136. The Court continued:

         [T]he [plaintiffs] had ample time and means to ascertain the
         proper identity of the driver prior to the expiration of the
         statute of limitations and to properly name [the driver] as
         the defendant in the complaint. The [plaintiffs] were on
         notice as to the identity of the driver, and they failed to use
         reasonable diligence in correctly naming the defendant in
         the complaint.

Id.; see also Hamilton v. Bechtel, 657 A.2d 980, 983 (Pa. Super. 1995)

(“[L]ack of knowledge, mistake, or misunderstanding do not toll the running

of the statute of limitations” (citations and quotations omitted)).



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J-S43041-17

      Here, Appellants’ motion to amend the complaint sought to add a new,

distinct party, and thus could be granted only if there was active concealment

that tolled the statute of limitations.   See Ferraro, 777 A.2d at 1134-35;

Diaz, 841 A.2d at 549. The record reflects, however, that there was no active

concealment by Justin, Appellees, or Erie. First, Ms. Lapenz testified Justin

correctly identified himself at the scene of the accident:

         [Counsel for Appellant]: What name were you given at the
         time of the accident?

         [Ms. Lapenz]: Justin.

         [Counsel for Appellant]: That’s what you wrote down or
         thought you had written down?

         [Ms. Lapenz]: Yes, that’s what I had written down.

N.T., 9/30/14, at 5.

      Moreover, Ms. Lapenz indicated that neither Appellees nor Erie were

responsible for her confusion between “Justin” and “Dustin”:

         [Counsel for Appellee:] There was nothing that Erie
         Insurance did to create that initial sense of confusion in your
         mind; was there?

         [Ms. Lapenz:] It was just doubt that I had.

         [Counsel for Appellee:] And it was doubt because of your
         work?

         [Ms. Lapenz:] Because of me working so closely with a
         Justin and Dustin.

         [Counsel for Appellee:] And again, it wasn’t anything that
         anyone at Erie Insurance did to cause that confusion,
         correct?



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J-S43041-17

         [Ms. Lapenz:] Not up until I spoke with Tracy—Sharon.

         [Counsel for Appellee:] And it wasn’t anything that was done
         by either the Tiffanys or the Brinks that caused that
         confusion, correct?

         [Ms. Lapenz:] I had no communication with them since the
         accident.


Id. at 16.

      While a formal police report was not prepared, Ms. Lapenz had taken

notes at the scene of the accident and had correctly identified Justin as the

driver.8 The fact that Ms. Lapenz tended to confuse the names “Justin” and

“Dustin,” did not establish active concealment. See Hamilton, 657 A.2d at

983. Further, unlike the defendant in DeRugeriis, Justin did not supply Ms.

Lapenz with an incorrect name, nor did Appellees withhold Justin’s identity

until after the statute of limitations expired. Within days of the accident, Justin

and David Tiffany contacted Erie and identified Justin as the driver.

      Furthermore, while Ms. Russell informed Ms. Lapenz that Dustin was the

driver, that misstatement is not attributable to Appellees.         Although Erie

covered both Appellants and Appellee, Ms. Russell was not the liability adjustor

for Appellees; rather, she was the first party medical adjustor for Ms. Lapenz.9



8 We note that Ms. Lapenz subsequently lost these notes. However, she
testified that at the time her confusion arose as to who the other driver was,
she was in possession of another document, which listed Justin as the driver.

9 Ms. Lapenz testified she was aware there were two different adjustors with
two different claim numbers.



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J-S43041-17

Notably, Ms. Lapenz testified that Appellees’ liability adjustor, Ms. Krepps,

never misled her into believing that the other driver was Dustin:

          [Counsel for Appellee:] And [Ms. Krepps] never told you
          who the name of the driver was?

          [Ms. Lapenz:] Not that I recall.

          [Counsel for Appellee:] In other words, it wasn’t a
          conversation and she goes, oh, yeah, were you hit by
          Dustin? Nothing like that that you recall?

          [Ms. Lapenz:] Not that I recall.


N.T. at 20. There was no evidence Ms. Krepps was aware of the error in the

letter of representation.10

      There is also no evidence that David Tiffany knew Dustin was wrongly

named as a defendant when Deputy Orr served him with original process.

David Tiffany testified there was nothing written on the envelopes besides his

name, Cheryl Tiffany’s name, and Dustin’s name, and Deputy Orr did not

indicate what the envelopes contained. Therefore, he could not have known

that Deputy Orr was serving him with a lawsuit concerning Justin’s accident

nearly two years earlier.     Thus, Appellants’ argument that David Tiffany

engaged in active concealment of the correct defendant lacks support in the

record.




10Ms. Russell and Ms. Krepps were not called as witnesses at the hearing on
the motion to amend the complaint.


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J-S43041-17

      Appellants next contend that Appellees waived their argument that Ms.

Russell’s statement that Dustin, not Justin, was the driver of the vehicle did

not constitute concealment because Ms. Russell was Appellants’ first party

medical benefits adjustor, not Appellees’ liability adjustor.      By way of

background, Appellants filed their motion to amend the complaint, claiming,

in part, that Ms. Russell’s statement constituted concealment because Erie

insured both Appellants and Appellees.       Appellees filed a written response

contesting the motion and arguing that no misidentification occurred. At the

hearing, Appellees argued that Ms. Russell’s misidentification could not be

attributed to them because Ms. Russell was Appellants’, not Appellees’,

adjustor.   Appellants suggested that this argument was waived because

Appellees failed to include in their written response to their motion to amend

the complaint. The trial court granted the parties leave to file supplemental

briefs on the issue of waiver, but ultimately concluded that no waiver occurred

and Appellants’ failed to show that they were prejudiced by the argument. We

agree with the trial court.

      Appellants’ motion to amend their complaint is governed by the general

rules governing motions practice.       See Pa.R.C.P. 208.1.-211.        Unlike

responses to motions for summary judgment or post-trial motions, the general

rules governing motions practice do not include a waiver provision.        See

Pa.R.C.P. 208.1(b)(1) (noting general rules regarding motions in Rules 208.1-

211 do not apply to motions for summary judgment or post-trial motions);



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J-S43041-17

Pa.R.C.P. 1035.3(a), (d) (requiring response to motion for summary judgment

and permitting court to enter summary judgment against a party who fails to

respond).   Moreover, it is well settled that the party moving to amend a

complaint after the statute of limitations has run “bears the burden of proving

active concealment through clear and convincing evidence.” Blaine v. York

Financial Corp., 847 A.2d 727, 729 (Pa. Super. 2004) (citation omitted).

      Instantly, Appellees contested Appellants’ motion and preserved their

claim that they did not conceal Justin’s identity as the driver from Appellants.

Appellants’ thus bore the burden of establishing a basis for finding

concealment, which they did not meet.         See id.   Appellees’ specific legal

argument was not waived, and the parties were free to supplement their

arguments based on record developed at the hearing.          Moreover, the trial

court was under no obligation to ignore that argument when ruling on

Appellants’ motion. Thus, we discern no merit to Appellants’ argument that

Appellees waived their argument that Ms. Russell’s statement did not

constitute concealment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2017


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