J-S22029-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    TERRENCE R. FICK, JR.                      :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BARRY BARBON                               :   No. 1997 MDA 2019

               Appeal from the Order Entered November 20, 2019
      In the Court of Common Pleas of Berks County Civil Division at No(s):
                                  18-13137

BEFORE:      OLSON, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                                  FILED MAY 29, 2020

        Terrence R. Fick, Jr. (Appellant) appeals from the order granting

summary judgment in favor of Appellee Barry Barbon (Barbon) and dismissing

Appellant’s complaint. We affirm.

        The trial court detailed the facts and procedural history as follows:

                                         FACTS

           On July 3, 2018, [Appellant] filed a personal injury action
        against [Barbon] for an accident that occurred on July 5, 2016.
        [Barbon] owns the vehicle that struck [Appellant]’s vehicle.
        [Appellant] did not sue the driver of the vehicle, Dean Reist
        [(Reist)]. [Barbon] was personally served on July 17, 2018, after
        the two-year statute of limitations had expired on July 5, 2018.
        [Barbon] filed an [a]nswer on July 23, 2018, denying that he was
        the operator of the vehicle at the time of the accident. On July
        30, 2018, [Barbon]’s counsel informed [Appellant]’s counsel that
        [Reist], [Barbon]’s grandson, was operating the vehicle on the
        date of the accident.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S22029-20


          On August 1, 2018, [Appellant] filed a [m]otion for [l]eave to
      [f]ile [an] [a]mended [c]omplaint to name [Reist] as the
      defendant. [Appellant] alleged that on August 2, 2017, his
      attorney spoke to the bodily injury liability adjuster for Nationwide
      Insurance Company of America (Nationwide), [Barbon]’s
      insurance carrier, to inquire about [Barbon]’s correct address for
      service of original process. [Appellant] further alleged that
      pursuant to DeRugeriis v. Brenner, 348 A.2d 139 (Pa. Super.
      1975), where the named defendant or its insurer actively conceals
      the identity of the responsible party until after the statute of
      limitations expires, the limitations period is deemed tolled.
      [Appellant] contended that [Barbon] and Nationwide actively
      concealed the identity of [Reist] by not disclosing [Reist]’s identity
      when [Appellant]’s counsel asked for the proper address to serve
      [Barbon].

         The parties engaged in discovery before [the trial] court heard
      argument on the issue.

                                 *      *     *

                             Procedural History

         After argument, by [o]rder dated January 3, 2019, [the trial]
      court denied [Appellant]’s [m]otion for [l]eave to [f]ile [an]
      [a]mended [c]omplaint. On March 22, 2019, [Appellant] filed a
      second [m]otion for [l]eave to [f]ile [an] [a]mended [c]omplaint
      to name [Reist] as a party defendant. [Appellant] contended that
      Pa.R.C.P. 1033(b) applied to the instant case. After argument,
      [the trial] court denied [Appellant]’s second motion.

         On September 6, 2019, [Barbon] filed a [m]otion for
      [s]ummary [j]udgment, contending that [Appellant]’s claims must
      be dismissed as a matter of law. Following argument, [the trial]
      court granted this motion. [Appellant] filed a timely appeal.

Trial Court Opinion, 2/14/20, at 1-3.

      The trial court and Appellant have complied with Pennsylvania Rule of

Appellate Procedure 1925. On appeal, Appellant presents the following issues

for review:


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      1.      Whether the Honorable [t]rial [c]ourt erred and abused its
      discretion in denying [Appellant]’s [s]econd [m]otion for [l]eave
      to file an [a]mended [c]omplaint where: (1) Reist received notice
      of the instant litigation within 90 days of the running of the statute
      of limitations; (2) Reist knew or should have known that he would
      be named as a party defendant; and (3) Reist will not be
      prejudiced in maintaining a defense on the merits.

      2.     Whether the Honorable [t]rial [c]ourt erred and abused its
      discretion in denying [Appellant]’s [f]irst [m]otion for [l]eave to
      file an [a]mended [c]omplaint where [Barbon] and his agents
      actively misled [Appellant]’s undersigned counsel as to the
      identity of the driver in the motor vehicle accident at issue where
      [Barbon]’s agents knew the true identity of the driver of Barbon’s
      vehicle on July 5, 2016 and knew or should have known that the
      driver of Barbon’s vehicle would be at issue, and still did not
      disclose the identity of the driver to [Appellant]’s counsel until
      after the [s]tatute of [l]imitation had run.

      3.    Whether the Honorable [t]rial [c]ourt erred and abused its
      discretion in granting [Appellant]’s [m]otion for [s]ummary
      [j]udgment where, had the [c]ourt granted either of [Appellant]’s
      prior [m]otions for [l]eave to [f]ile [an] [a]mended [c]omplaint,
      genuine issues of material fact would exist regarding negligence
      and causation, requiring submission of the case to the jury as
      finder of fact.

Appellant’s Brief at 7-8.

      Appellant’s first two issues challenge the trial court’s denial of his two

requests to file an amended complaint. “The decision of the trial court 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.” TCPF Ltd. P’ship v. Skatell, 976 A.2d 571, 574 (Pa. Super.

2009) (citations omitted). “An abuse of discretion exists when the trial court

has rendered a judgment that is manifestly unreasonable, arbitrary, or

capricious, has failed to apply the law, or was motivated by partiality,

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prejudice, bias, or ill will.” Guntrum v. Citicorp Tr. Bank, 196 A.3d 643,

646 (Pa. Super. 2018).

     In his first issue, Appellant challenges the trial court’s denial of his

second request to file an amended complaint. In support, Appellant asserts

that the trial court failed to properly apply the amendment to Pennsylvania

Rule of Civil Procedure 1033, the rule that governs amendments to pleadings.

Effective April 1, 2017, our Supreme Court amended Rule 1033 to add the

following language as Subsection (b):

     (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.C.P. 1033(b).

     Appellant argues that the trial court should have permitted him under

the framework adopted in Rule 1033(b) to file an amended complaint to add

Reist as a party. Appellant contends that the provisions of Subsection (b)

permitted him to add Reist as a party “relating back” to the commencement




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of the action (July 3, 2018), and importantly, before the expiration of the two-

year statute of limitations.1 Appellant argues:

       [Reist] knew or should have known that he would be named as a
       party in the instant litigation [because] he was made aware that
       the [c]omplaint concerned the motor vehicle accident in which he
       rear-ended [Appellant]’s vehicle in the same month in which
       Barbon was served with the [c]omplaint. Further, Reist will not
       be prejudiced by presenting a defense on the merits as he has
       already done so.

Appellant’s Brief at 15.

       We first recognize that “the interpretation and application of a

Pennsylvania Rule of Civil Procedure presents a question of law.” Boatin v.

Miller, 955 A.2d 424, 427 (Pa. Super. 2008) (citation omitted). Thus, “our

standard of review is de novo, and our scope of review is plenary.” Id.

       Pennsylvania Rule of Civil Procedure 127 sets forth the guidelines for

interpreting other rules of civil procedure. See Pa.R.C.P. 127. It states:

       Rule 127. Construction of Rules. Intent of Supreme Court Controls

       (a) The object of all interpretation and construction of rules is to
       ascertain and effectuate the intention of the Supreme Court.

       (b) Every rule shall be construed, if possible, to give effect to all
       its provisions. When the words of a rule are clear and free from
       all ambiguity, the letter of it is not to be disregarded under the
       pretext of pursuing its spirit.


____________________________________________


1  “The following actions and proceedings must be commenced within two
years: . . . Any other action or proceeding to recover damages for injury to
person or property which is founded on negligent, intentional, or otherwise
tortious conduct[.]”     42 Pa.C.S.A. § 5524(7); see also Meadows v.
Goodman, 993 A.2d 912, 915 (Pa. Super. 2010) (“The statute of limitations
for a personal injury claim is two years.”).

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     (c) When the words of a rule are not explicit, the intention of the
     Supreme Court may be ascertained by considering, among other
     matters (1) the occasion and necessity for the rule; (2) the
     circumstances under which it was promulgated; (3) the mischief
     to be remedied; (4) the object to be attained; (5) the prior
     practice, if any, including other rules and Acts of Assembly upon
     the same or similar subjects; (6) the consequences of a particular
     interpretation; (7) the contemporaneous history of the rule; and
     (8) the practice followed under the rule.

Pa.R.C.P. 127. Importantly, “a note to a rule or an explanatory comment is

not a part of the rule, but may be used in construing the rule.” Boatin, 955

A.2d at 427 (citing Pa.R.C.P. 129(e)).

     Because there is little case law applying the amendment to Rule 1033,

we briefly review the governing principles of amending pleadings. This Court

has summarized the following with respect to Rule 1033:

        It is “beyond peradventure that leave to amend pleadings has
     traditionally been liberally granted in this jurisdiction.” Biglan v.
     Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984) (citations
     omitted); see Pa.R.C.P. 126. As can be seen from the clear
     language of Rule 1033, no limit is imposed on the time when an
     amendment may be made. Thus, “[p]leadings may be amended
     at the discretion of the trial court after pleadings are closed, while
     a motion for judgment on the pleadings is pending, at trial, after
     judgment, or after an award has been made and an appeal taken
     therefrom.” Id. at 1025-26 (emphasis added) (citing Sheppard
     v. First Pa. Banking & Tr. Co., 184 A.2d 309, 311 (Pa. Super.
     1962)); see also Keller v. R.C. Keller Motor Co., 124 A.2d 105,
     106 (Pa. 1956) (noting that pleadings may be amended at any
     stage of the proceedings); Trabue v. Walsh, 177 A. 815, 816
     (Pa. 1935) (“Pleadings may be amended at any state of the
     case.”).

         As we explained in Biglan, “[t]he fundamental purpose of this
     rule is to prevent cases from turning on purely technical defects.
     . . . [H]ypertechnicality and formalism in pleading are contrary to
     modern practice of allowing free amendment in order to promote
     resolution of cases on their merits.” Biglan, 479 A.2d at 1026

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     (citations omitted).    Nonetheless, a trial court may deny
     amendment of pleadings if there is resulting prejudice or surprise
     to the adverse party. Id. “[P]rejudice, in turn, must be more
     than a mere detriment to the other party because any amendment
     requested certainly will be designed to strengthen the legal
     position of the amending party and correspondingly weaken the
     position of the adverse party.” MacGregor v. Madiq Inc., 576
     A.2d 1123, 1126 (Pa. Super. 1990) (citation omitted).           In
     Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995), we
     noted that prejudice sufficient to deny amendment of the
     pleadings “must be more than a mere detriment to the other
     party[.]” Id. at 346. The “fact that the adverse party has
     expended time and effort in preparing to try a case against the
     amending party is not such prejudice as to justify denying the
     amending party leave to amend[.]”         Id. (citation omitted).
     Indeed, “[d]enial of a petition to amend, based on nothing more
     than unreasonable delay, is an abuse of discretion.” Id. at 347
     (citation omitted). However, under the current language of Rule
     1033, pleadings may not be amended to correct a party’s name if
     more than 90 days have passed since the expiration of the statute
     of limitations. See Pa.R.C.P. 1033(b).

Thom v. CDM Auto Sales, 221 A.3d 681, 684-85 (Pa. Super. 2019) (citations

modified; footnotes omitted).

     In this case, Appellant did not seek to amend the complaint to correct a

party’s name. Rather, Appellant sought to amend the complaint to add Reist

as a party because Reist, not Barbon, was the driver of the car that struck

Appellant’s vehicle. Appellant’s Brief at 15. Historically, such practice was

explicitly prohibited beyond the two-year limitations period.   As this Court

explained:

        Pennsylvania Rule of Civil Procedure 1033 provides that a
     party, by consent or leave of court, “may at any time change the
     form of action, correct the name of a party or amend his pleading.”
     Pa.R.C.P. 1033. However, amendment of a complaint after the
     statute of limitations has expired will not be permitted where the


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      amendment attempts to bring a new party into the action.
      As our Court has stated in a prior case:

             A plaintiff may not add a new defendant after the
         applicable statute of limitations has expired. Hoare v. Bell
         Tel. Co. of Pa., 500 A.2d 1112 (Pa. 1985); Zercher v.
         Coca–Cola USA, 651 A.2d 1133 (Pa. Super. 1994). Thus,
         in cases where the statute of limitations has expired and a
         party seeks to amend its pleading to correct the name of
         party, the issue is whether the proposed amendment adds
         a new party to the litigation or merely corrects a party
         name. Jacob’s Air Cond. v. Assoc. Heating, 531 A.2d
         494, 496 (Pa. Super. 1987). “If an amendment constitutes
         a simple correcting of the name of a party, it should be
         allowed, Wicker v. Esposito, 457 A.2d 1260 (Pa. 1983),
         but if the amendment in effect adds a new party, it should
         be prohibited. Cianchetti v. Kaylen, 361 A.2d 842 (Pa.
         Super. 1976).” Jacob’s Air Cond. v. Assoc. Heating,
         supra, 531 A.2d at 496. Zercher v. Coca-Cola USA,
         supra, 651 A.2d at 1135. If the proper party was sued but
         under the wrong designation, the correction will be allowed.
         However, where the wrong party was sued and the
         amendment is designed to substitute another,
         distinct party, it will be disallowed. Hamilton v.
         Bechtel, 657 A.2d 98 (Pa. Super. 1995).

      Anderson Equipment Co. v. Huchber, 690 A.2d 1239, 1241
      (Pa. Super. 1997) (footnote omitted).

Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1132-33 (Pa. Super. 2001)

(emphasis added; citations modified).

      Thus, the test courts have employed to determine if an amendment is

permissible after the expiration of the statute of limitations is whether the

plaintiff sued the correct party, but under the wrong name, or whether the

plaintiff sued the wrong party and sought to name another party. See id.

There are numerous examples in Pennsylvania case law demonstrating that a

plaintiff’s failure to sue the correct party in a complaint ultimately led to the

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termination of the suit. See, e.g., Saracina v. Cotoia, 208 A.2d 764,766

(Pa. 1965) (affirming trial court’s refusal to permit plaintiff, who was struck

by a vehicle, to amend the complaint after the statute of limitations had run

where the plaintiff improperly named the driver’s father as the sole

defendant); Ferraro, 777 A.2d at 1137 (upholding trial court’s refusal to allow

plaintiff, who was struck by a vehicle, to amend the complaint after the statute

of limitations expired, where the plaintiff incorrectly named the driver’s wife

as the lone defendant).

      Appellant asserts that Rule 1033(b) now permits a party to amend the

pleadings to add or substitute another party to a suit after the limitations

period. We disagree.

      The Explanatory Comment for the 2017 amendment to Rule 1033

states:

         Currently, the Rules of Civil Procedure do not expressly permit
      an amendment correcting the name of a party against whom a
      claim is asserted to relate back without a showing of concealment
      when the statute of limitations has expired and the effect of that
      correction operates to add another party. However, case law has
      interpreted the Rules to permit such an amendment within the
      statute of limitations. Rule 1033 has been amended to expressly
      permit amendments correcting the name of the party against
      whom a claim is asserted to relate 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 to be
      brought in by the amendment has received notice of the
      commencement of the action such that it will not be prejudiced in
      obtaining 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.




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         Consider the following example: Harry Roberts, who resides at
      949 Alcoma Street, Pittsburgh, PA, was the driver of an
      automobile which struck the plaintiff when he was crossing the
      intersection at Grant and Forbes Street, Pittsburgh, PA, at
      approximately 11:00 a.m. on October 11, 2013. The plaintiff’s
      complaint, filed on October 2, 2015, mistakenly identifies the
      driver as Henry Rosen. He is the only named defendant in the
      complaint.

         On October 7, 2015, the Sheriff made service by serving Mary
      Roberts at 949 Alcoma Street, Pittsburgh, PA. She is described in
      the Sheriff’s Return as the wife of the defendant. On January 2,
      2016, the complaint is amended to correct “Henry Rosen” to
      “Harry Roberts.”

         The amendment of Rule 1033 expressly permits the plaintiff to
      amend the complaint to correct the name of the defendant to
      Harry Roberts, because it is clear from the body of the complaint
      that the plaintiff was suing the driver of the automobile which
      struck the plaintiff and service of the complaint furnished sufficient
      notice to Harry Roberts that a lawsuit has been initiated against
      him for actions he is liable for even though the defendant is
      identified on the complaint as Henry Rosen. This is consistent with
      existing case law and codifies current practice.

Pa.R.C.P 1033 (Explanatory Comment -- 2017).

      Thus, while Rule 1033(b) and the Explanatory Comment permit a

plaintiff to “correct” the name of a party to “relate back” to before the

expiration of the statute of limitations, neither the rule nor the comment

permit or contemplate a plaintiff adding or substituting another individual after

the statute of limitations has expired. See id. Additionally, the Explanatory

Comment states that we are to read Rule 1033(b) “consistent with existing

case law and codif[ying] current practice.” Id. The existing case law is well-

settled – “where the wrong party was sued and the amendment is designed

to substitute another, distinct party, it will be disallowed.” Ferraro, 777 A.2d

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J-S22029-20


at 1133. Here, Appellant sought to amend the complaint to include Reist.

Appellant’s Brief at 15. Therefore, the trial court did not err in denying his

second motion for leave to amend the complaint. See id.

      Moreover, Rule 1033(b) states that a plaintiff may only amend a

complaint to correct the name of the party where “the action would have been

brought against th[at] party but for a mistake concerning the identity of the

proper party.” Pa.R.C.P. 1033(b).     The trial court emphasized that in this

case, there was no mistake concerning the correct identity of the driver, Reist,

who rear-ended Appellant’s vehicle. See Trial Court Opinion, 2/14/20, at 2-

3. Appellant admitted in his deposition testimony that after the accident, Reist

provided him with Reist’s name, address, automobile insurance information,

and driver’s license.     N.T., 10/16/18, at 8-11, Exhibit 1 (Deposition of

Appellant). It is undisputed that Appellant knew Reist’s identity.

      In sum, the trial court correctly determined that Rule 1033(b) was

inapplicable, and did not abuse its discretion in denying Appellant’s second

motion for leave to file an amended complaint.

      Next, Appellant argues that the trial court abused its discretion in

denying his first request to file an amended complaint. Appellant asserts that

Barbon and his insurer, Nationwide, actively concealed Reist’s identity from

Appellant’s counsel. Appellant contends that neither Barbon nor Nationwide

mentioned Reist to Appellant’s counsel in any correspondence in the months

following the accident.


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      Appellant references this Court’s holding that “the statute of limitations

is tolled where a defendant actively conceals the identity of the party against

whom a plaintiff intends to bring a cause of action.” Lafferty v. Alan Wexler

Agency, Inc., 574 A.2d 671, 672 (Pa. Super. 1990). In this case, however,

the record belies Appellant’s claim. The trial court observed that Appellant

“always knew the driver’s identity.” Trial Court Opinion, 2/14/20, at 5. As

noted above, Appellant testified that Reist provided him with his name,

address, automobile insurance information, and driver’s license at the scene

of the accident. N.T., 10/16/18, at 8-11, Exhibit 1 (Deposition of Appellant).

Thus, the fault for Appellant’s counsel not knowing the correct identity of the

driver lies with Appellant and his counsel. As the record does not support

Appellant’s second claim, we cannot conclude that the trial court abused its

discretion in denying Appellant’s first motion for leave to file an amended

complaint.

      Finally, we turn to Appellant’s third issue:     whether the trial court

properly granted summary judgment. Our standard of review regarding a trial

court’s decision to grant or deny summary judgment is as follows:

         A reviewing court 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. Pa.R.C.P. 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

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      may be entered. Where the non-moving 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 it bears the burden of proof establishes
      the entitlement of the moving party to judgment as a matter of
      law. Lastly, we will 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.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014).

      Here, the trial court based its decision to grant summary judgment on

Appellant’s failure to name the proper party, Reist, as a defendant in his suit

alleging negligent operation of a vehicle. See Trial Court Opinion, 2/14/20,

at 7-8. Based on our review of the record, the evidence supports the trial

court’s determination that Appellant did indeed sue the wrong individual, and

the trial court did not abuse its discretion in denying Appellant’s motions for

leave to file an amended complaint.     Therefore, we conclude that the trial

court correctly determined that there were no disputed material facts and

Barbon was entitled to judgment as a matter of law. See Thompson, 95

A.3d at 904.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 05/29/2020


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