J-S40016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 JOHN F. MASTRIAN                        :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MARC A. PEOPLES                         :    No. 1725 WDA 2018

             Appeal from the Order Entered November 5, 2018
     In the Court of Common Pleas of Lawrence County Civil Division at
                        No(s): 10011 of 2018, C.A.


BEFORE:    BENDER, P.J.E., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED OCTOBER 11, 2019

      John Mastrian appeals from the order denying his Motion to Amend

Caption and Correct Middle Initial and granting judgment on the pleadings

against Mastrian. Mastrian contends he made a technical mistake when

naming the defendant, and the court erred in denying his motion to amend

the caption to correct the defendant’s name from “Marc A. Peoples” (“Marc A.

Peoples” or “Peoples”) to “Marc W. Peoples.” We affirm.

      On January 4, 2018, Mastrian initiated this civil action against “Marc A.

Peoples” by filing a praecipe for writ of summons. On January 5, 2018, the

Lawrence County Sheriff’s Department served Marc A. Peoples by handing a

copy of the praecipe for writ to Peoples’ wife, Susanna Peoples. In March 2018,

Mastrian filed a Complaint seeking damages that allegedly resulted from a

January 2016 motor vehicle accident. The Complaint alleged that “Marc A.

Peoples[] was the owner and operator of a 2004 Ford F150 Pickup Truck

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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registered in the Commonwealth of Pennsylvania.” Complaint at ¶ 4. The

Complaint alleged that “[s]uddenly and without warning . . . Marc A. Peoples,

was operating his 2004 Ford Pickup Truck in a northerly direction on Mercer

Road and failed to stop and collided directly into the rear of [Mastrian’s]

automobile.” Id. at ¶ 5. In the Complaint, Mastrian asserted a cause of action

based on Peoples’ alleged negligence in operating the vehicle.

      Marc A. Peoples filed an Answer and New Matter, which contained a

Notice to Plead. Peoples admitted to owning the vehicle, but denied operating

the vehicle at the time of the accident. Answer and New Matter at ¶¶ 4, 22.

The Answer stated that the driver of the vehicle was “Marc W. Peoples.” Id.

at ¶ 22. Peoples also raised affirmative defenses, including the defense that

the claims were barred by the statute of limitations. Mastrian did not file a

reply to the Answer and New Matter.

      In June 2018, Peoples filed a Motion for Judgment on the Pleadings,

asserting that, because Mastrian failed to respond to the Answer and New

Matter, he admitted the allegations contained therein. Peoples argued he was

entitled to judgment on the pleadings because Mastrian admitted Peoples was

not operating the vehicle at the time of the accident.

      Mastrian did not file a response to the Motion for Judgment on the

Pleadings. Rather, in September 2018, Mastrian filed a Motion to Amend the




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Caption and Correct Middle Initial of Defendant.1 He attached to the Motion

the Police Crash Report, which included that “Marc Peoples” or “Marc W.

Peoples,” born in 1996, was the operator of the vehicle, and that the vehicle’s

insurance policy was in the name of “Marc Allan Peoples.”

       The trial court denied Mastrian’s Motion to Amend the Caption and

granted People’s Motion for Judgment on the Pleadings. It concluded that by

failing to file a response to Peoples’ Answer and New Matter, Mastrian admitted

the factual averments contained in the Answer, including that Peoples was not

operating the vehicle at the time of the accident. Trial Court Opinion, filed

Nov. 5, 2018, at 6.2

       The court also found that in his Motion to Amend the Caption and Correct

the Middle Initial, Mastrian was attempting to amend his complaint to “add or

substitute a distinct party,” which he could not do, as the statute of limitations

had expired. Id. at 12. The court reasoned:

          As evidenced by the sheriffs Return in this case, the writ of
          summons was served upon [Peoples’] wife and she was
          identified as such in that document placing [Mastrian] on
          notice that it was the father, Marc A. Peoples, who was the
          named defendant and not the son, Marc W. Peoples. There
____________________________________________


1 At a hearing on the Motion for Judgment on the Pleadings, counsel for
Mastrian stated that he filed the motion to correct the caption on the morning
of the hearing, that is, September 24, 2018. N.T., 9/24/18, at 6. The motion
in the certified record is stamped as filed on November 5, 2018. In its analysis,
the court uses the September 24 date. As it does not impact our decision, we
will do so as well.

2 It also found that, because it was a legal conclusion, not a factual averment,
the failure to file a responsive pleading did not result in the admission that the
cause of action was barred by the statute of limitations. Tr. Ct. Op. at 6.

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         was no indication the complaint was served upon or
         provided to Marc W. Peoples. Plaintiff should have been
         aware that service was made to Defendant as the adult
         accepting service of the Writ of Summons was identified as
         his wife, not his mother. Additionally, the complaint was
         filed against Marc A. Peoples and the Answer and New
         Matter were filed on behalf of Marc A. Peoples, despite Marc
         W. Peoples being clearly identified as the driver on the police
         report. Marc W. Peoples is not currently before the court as
         he has never appeared before the Court in this matter nor
         has he filed any documents in the above-captioned matter.

Tr. Ct. Op. at 12-13.

      Mastrian filed a timely Notice of Appeal. He raises the following issues:

         I. Whether Trial Judge Dominick Motto erred when he
         dismissed . . . John F. Mastrian[’s] Complaint including all
         Claims contained therein having granted [Peoples’] Motion
         for Judgment on the Pleadings.

         II. Whether Trial Judge Dominick Motto erred when he
         denied Plaintiffs Motion to Amend Caption and Correct
         Middle Initial of Defendant.

Mastrian’s Br. at 4.

      We first will address Mastrian’s second issue, which claims the trial court

erred in denying his Motion to Amend Caption and Correct Middle Initial of

Defendant. Mastrian contends that “[a]n erroneous technical defect of middle

initial or middle name in the designation of [a] party . . . may be corrected by

amendment even after the statute of limitations expired.” Id. at 17. He claims

that requests to amend the pleadings should be “liberally granted,” and there

“was no resulting prejudice, since [Marc W. Peoples] . . . lived at the same

residence as his mother and father and service was provided to the adult

individual (mother) at his residence.” Id. at 19.



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      We review the denial of a motion to amend the caption for an abuse of

discretion. Phillips v. Lock, 86 A.3d 906, 915 (Pa.Super. 2014).

      Pennsylvania Rule of Civil Procedure 1033 provides:

         (a) 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. The amended pleading
         may aver transactions or occurrences which have happened
         before or after the filing of the original pleading, even
         though they give rise to a new cause of action or defense.
         An amendment may be made to conform the pleading to the
         evidence offered or admitted.

         (b) 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 90 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.Civ.P. 1033(a)-(b). Further, where a party attempts to amend a pleading

after the statute of limitations expired, courts apply the following rule:

         Where the statute of limitations has run, amendments will
         not be allowed which introduce a new cause of action or
         bring in a new party or change the capacity in which he is
         sued. If the effect of the amendment is to correct the name
         under which the right party is sued, it will be allowed; if it is
         to bring in a new party, it will be refused.

Blaine v. York Fin. Corp., 847 A.2d 727, 729 (Pa.Super. 2004) (quoting

Girardi v. Laquin Lumber Company, 81 A. 63, 64 (Pa. 1911)).




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      Here, Mastrian alleged the accident at issue occurred on January 5,

2016. The statute of limitations on any negligence claim resulting from that

accident expired two years later, or on January 5, 2018. See 42 Pa.C.S.A. §

5524(7). Mastrian filed the praecipe for writ of summons, naming “Marc A.

Peoples” as the defendant, on January 4, 2018, the day before the expiration

of the statute of limitations.

      In Saracina v. Cotoia, 208 A.2d 764, 766 (Pa. 1965), the Pennsylvania

Supreme Court affirmed the trial court’s order denying a plaintiff’s motion to

amend the caption of the complaint after the expiration of the statute of

limitations. There, the plaintiff named as the defendant, “Anthony Cotoia, a

minor.” Id. at 765. The defendant filed an answer, responding that he was

not a minor and that, although he owned the vehicle, his son Robert Cotoia

was operating the vehicle at the time of the accident. Id. After the expiration

of the statute of limitations, the plaintiff sought to amend the complaint to

change the name of the defendant from Anthony Cotoia to Robert Cotoia. Id.

The court found the plaintiff could not amend the complaint, reasoning that

service had been made on Anthony Cotoia and the return of service “in no

way indicates that Robert C[o]toia was properly served and is now before the

[c]ourt.” Id. at 766.

      Similarly, in Ferrero v. McCarthy-Pascuzzo, this Court concluded a

plaintiff could not amend the caption after the statute of limitations had

expired where the plaintiff named the insurance-policy holder as the

defendant in the original complaint, rather than the operator of the vehicle.

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777 A.2d 1128, 1136 (Pa.Super. 2001). The policy holder was the wife of the

operator of the vehicle. Id. at 1130. We noted that the police report identified

the correct operator of the vehicle, and that the named defendant did not

attempt to conceal the operator’s identity or mislead the plaintiff as to the

identity. Id. at 1135-36.

      Here, the trial court relied on the above cases, among others, and found

that Mastrian was attempting to bring in a new party—Marc W. Peoples. It

noted that the proper party was clear from the police report, and from the

return of service, which stated that Susanna Peoples was the wife, not the

mother, of Marc A. Peoples. It found that Mastrian could not amend the caption

after the statute of limitations expired, and denied the motion.

      The trial court did not abuse its discretion. Mastrian was aware from the

police report that the driver of the vehicle was Marc W. Peoples, who was born

in 1996. He, however, named as a defendant Marc A. Peoples. Following

service of the praecipe, Mastrian learned that the wife of Marc A. Peoples

accepted service. Here, Marc A. Peoples and Marc W. Peoples are two separate

individuals. Mastrian concedes as much when he notes that Susanna Peoples

is the wife of Marc A. Peoples and the mother of Marc W. Peoples. Mastrian’s

Br. at 7. Mastrian was aware of the identity of the operator of the vehicle, but

failed to name that person as a defendant in the Complaint. Under the facts

of this case, we cannot conclude that the trial court abused its discretion in

denying the motion.




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       We next address Mastrian’s claim that the court erred in granting

Peoples’ Motion for Judgment on the Pleadings.

       Entry of judgment on the pleadings is proper where “there are no

disputed issues of fact and the moving party is entitled to judgment as a

matter of law.” Altoona Regional Health Sys. v. Schutt, 100 A.3d 260, 265

(Pa.Super. 2014) (quoting Consol. Coal Co. v. White, 875 A.2d 318, 325–

26 (Pa.Super. 2005)). To determine “if there is a dispute as to facts, the court

must confine its consideration to the pleadings and relevant documents.” Id.

(quoting Consol. Coal Co., 875 A.2d at 325-26). If a plaintiff fails to file a

response to an answer and new matter that contains a notice to plead, the

failure “is treated as an admission of the allegations made in the” answer and

new matter. McCormick v. Allegheny Gen. Hosp., 527 A.2d 1028, 1032

(Pa.Super. 1987).

       When reviewing an order granting judgment on the pleadings, we must

determine “whether the trial court’s ruling was based on a clear error of law

or whether there were facts disclosed by the pleadings which should properly

be tried before a jury or by a judge sitting without a jury.” Altoona Regional

Health Sys., 100 A.3d at 265 (quoting Consol. Coal Co., 875 A.2d at 325-

26).

       Because Mastrian did not file a reply to the Answer and New Matter, he

has admitted the averments contained in the Answer and New Matter,

including that Peoples was not operating the vehicle at the time of the

accident. See McCormick, 527 A.2d at 1032. Because Peoples was not

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operating the vehicle, Mastrian cannot state a negligence cause of action

against Peoples based on operation of the vehicle, and the court did not err in

granting the Motion for Judgment on the Pleadings.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2019




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