Longstaff v. Tuthill

1 Pa. D. & C.4th 529, 1987 Pa. Dist. & Cnty. Dec. LEXIS 27
CourtPennsylvania Court of Common Pleas, Carbon County
DecidedDecember 7, 1987
Docketno. 87-0095
StatusPublished

This text of 1 Pa. D. & C.4th 529 (Longstaff v. Tuthill) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Carbon County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Longstaff v. Tuthill, 1 Pa. D. & C.4th 529, 1987 Pa. Dist. & Cnty. Dec. LEXIS 27 (Pa. Super. Ct. 1987).

Opinion

LAVELLE, P.J.,

This case raises the perplexing question of whether the court should allow the amendment of the name of a defendant after the statute of limitations has run. Because the effect of plaintiff’s proposed amendment would be to introduce a new and distinct party to the action, we cannot permit the amendment.

FACTS OF THE CASE

Plaintiffs complaint alleges that, through the negligence of defendant, Ray Tuthill, individually and trading as Little Gap Ski Area, she was injured while skiing at Little Gap. Plaintiff described Ray Tuthill in the complaint as an individual and the lawful owner of Little Gap. Defendant’s answer avers that he was not the owner of Little Gap and that Little Gap was owned by Tuthill Corporation, a Pennsylvania corporation.

After the pleadings were closed, defendant filed a motion for summary judgment. He attached as an exhibit to his motion a copy of a record of the Commonwealth of Pennsylvania, Department of State, Corporation Bureau, showing that Little Gap is a fictitious name for the operation of a ski area by Tuthill Corporation. Plaintiff responded that because defendant’s exhibit was not certified as a “true and correct copy,” it could not be considered [531]*531by the court as part of the record, and thus, a factual question remained as to who actually owned Little Gap.

During argument on defendant’s motion, we, sua sponte, granted plaintiff leave to file a petition to amend the complaint to change the name of defendant in the complaint from Ray Tuthill, individually and trading as Little Gap Ski Area, to the Tuthill Corporation. We also granted defendant leave to amend his motion for summary judgment to attach a certified copy of the Corporation Bureau record. We will now address the plaintiff’s petition to amend and defendant’s motion for summary judgment seriatim.

DISCUSSION

Petition to Amend Complaint

Rule 1033 of the Pennsylvania Rules of Civil Procedure permits, inter alia, the amendment of a complaint to correct the name of a party. Pa.R.C.P. 1033. The standards which guide our disposition of a petition to amend a complaint to “correct the name of a party,” after the statute of limitations has run, are clear:

“In situations where the statute of limitations had run and a party proposes an amendment to a complaint, . . . the question to be resolved is whether the proposed amendment merely corrects a party name or adds a new party to the litigation. If an amendment constitutes a simple correction of the name of a party, it should be allowed, Wicker v. Esposito, 500 Pa. 457, 457 A.2d 1260 (1983), but if the amendment in effect adds a new party, it should be prohibited. Cianchetti v. Kaylen, 241 Pa. Super. 437, 361 A.2d 842 (1976).” Jacob’s Air Condition[532]*532ing and Heating v. Associated Air Conditioning and Heating, 366 Pa. Super. 430, 531 A. 2d 494 (1987).

Plaintiff argues that allowing the amendment of the complaint from Ray Tuthill, individually and trading as Little Gap Ski Area, to Tuthill Corporation would merely be correcting the name of defendant and that no new party is being brought into this litigation. Plaintiff points out that Ray Tuthill is the president of Tuthill Corporation, was served with the complaint and made an appearance in this litigation by filing an answer.

Defendant, on the other hand, contends that, regardless of whether he has participated in the litigation thus far, he and the Tuthill Corporation are distinct and separate legal entities. He contends further that Pa.R.C.P. 1033 does not permit the substitution of one party for another, in the guise of correcting the name of a party, after the statute of limitations has run. We agree with defendant.

Plaintiffs proposed amendment is clearly not merely one of form, but one of substance. When plaintiff identified defendant in the complaint as “Ray Tuthill, individually . . .”, she evidenced an intent to sue Ray Tuthill as an individual. Further, we find that the words “trading as Little Gap Ski Area” are merely descriptive of the individual, and do not indicate an intent by plaintiff to sue a business entity as well. It was not the Tuthill Corporation which was misdescribed, but rather Ray Tuthill. The Tuthill Corporation entered no appearance; it was Ray Tuthill who filed the answer and participated in this litigation. The fact that Ray Tuthill, by virtue of his position as president of Tuthill Corporation, might have been competent to receive service on behalf of Tuthill Corporation is immaterial, because Tuthill Corporation was not [533]*533bound to take notice of, or participate in, an action against Ray Tuthill individually.

The proposed amendment is not, as plaintiff contends, the mere correction of the name of a party which is already in court, but instead, is an attempt to bring in a new party to the action which is not now in court in the guise of correcting the name of a party. We therefore hold that, because plaintiffs proposed amendment would bring an entirely new and distinct party into this action after the statute of limitations has run, it is not a permissible amendment under the Pennsylvania Rules of Civil Procedure.

We have found several cases which support this conclusion. In Scranton Private Hospital v. Caum, 61 Pa. Super. 93, 93-4 (1915), the Superior Court affirmed an order of the trial court which “refused to allow an amendment to a bill in equity, to change the name of the defendant from certain named individuals ‘representing themselves and all others interested in a certain unincorporated association known as the Scranton Railway Beneficial Association’ to a corporation, viz: Scranton Railway Beneficial Association.’ ” The reasoning of the Caum court was as follows:

“It is apparent from the record that the suggested defendant, the corporation, was not in court, and that between the date of service of the bill on the original defendants, and that of the date of moving for that amendment, the statute of limitations had run against the plaintiffs claim.” Id. at 94.

In Kerner v. Rackmill, 111 F.Supp. 150 (M.D. Pa. 1953), the Federal District Court for the Middle District of Pennsylvania addressed a case factually similar to the present case. In Rackmill, the complaint designated as defendant “Lloyd Rackmill, individually and doing business under the firm [534]*534name and style of Malibou Dude Ranch.” Id. Service of the complaint was made on the mother of Lloyd Rackmill. Id. Defendant filed an answer aver-ing that, inter alia, Malibou Dude Ranch was not owned and operated by him but instead by Malibou Dude Ranch Inc., a Pennsylvania corporation. Id. Plaintiff then sought leave to amend the complaint to show as a defendant Malibou Dude Ranch Inc., in addition to Lloyd Rackmill.

In denying the plaintiff’s petition to amend, the Rackmill court concluded that:

“In identifying the defendant as ‘Lloyd Rackmill, individually and doing business under the firm name and style of Malibou Dude Ranch,’ . . .

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Related

Kerner v. Rackmill
111 F. Supp. 150 (M.D. Pennsylvania, 1953)
Wicker v. Esposito
457 A.2d 1260 (Supreme Court of Pennsylvania, 1983)
Jacob's Air Conditioning & Heating v. Associated Heating & Air Conditioning
531 A.2d 494 (Supreme Court of Pennsylvania, 1987)
Cianchetti v. Kaylen
361 A.2d 842 (Superior Court of Pennsylvania, 1976)
Sechrist v. Palshook
97 F. Supp. 505 (M.D. Pennsylvania, 1951)
Waugh v. Steelton Taxicab Co.
89 A.2d 527 (Supreme Court of Pennsylvania, 1952)
Scranton Private Hospital v. Caum
61 Pa. Super. 93 (Superior Court of Pennsylvania, 1915)

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Bluebook (online)
1 Pa. D. & C.4th 529, 1987 Pa. Dist. & Cnty. Dec. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/longstaff-v-tuthill-pactcomplcarbon-1987.