McNeal, T. v. M & J Auto Repair

2024 Pa. Super. 181

• Court: Superior Court of Pennsylvania
• Decided: August 14, 2024
• Docket: 2507 EDA 2023
• Status: Published

Opinion

J-S16003-24

2024 PA Super 181

TYSHIRA MCNEAL : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : M & J AUTO REPAIR, JOHN DOES : NO. 1 THROUGH X, XYZ COMPANIES : 1-10, MARVIN MORRIS : No. 2507 EDA 2023 : : APPEAL OF: M & J AUTO REPAIR :

Appeal from the Order Entered August 25, 2023 In the Court of Common Pleas of Philadelphia County Civil Division at No: 200600413

BEFORE: STABILE, J., LANE, J., and STEVENS, P.J.E.*

OPINION BY STABILE, J.: FILED AUGUST 14, 2024

This appeal concerns whether a judgment was erroneously amended to

name Appellant, Marvin Morris (Morris), as a defendant on a date beyond the

applicable statute of limitations period. We affirm.

Appellee, Tyshira McNeal, was bitten by a dog on April 17, 2019, while

she was receiving services from a business called “M & J Auto Repair,” located

a 3946 Bott Street, in Philadelphia, Pennsylvania. McNeal filed suit on June

8, 2020, alleging that the owner or owners of the business operated on the

premises were negligent. The defendants were identified as “M & J Auto

Repair,” or alternatively, defendants with the fictitious names, “John Does No.

1 through X” and “XYZ Companies 1-10.”

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S16003-24

An answer to McNeal’s complaint was filed on behalf of “M & J Auto

Repair” on September 28, 2020, with the aid of counsel. Morris handwrote

his signature on the verification page of that answer. The bottom of the final

page of the document also referred specifically to Morris, as it contained the

file name, “L:/Morris Marvin/Defendant’s Response to Plaintiff’s Complaint and

New Matter 7-6-2020.doc.”

The case went before a compulsory judicial arbitration panel. M & J Auto

Repair participated in the arbitration, again with the aid of counsel. On June

16, 2022, the arbitration panel entered an award in McNeal’s favor, and

against only M & J Auto Repair. No appeal was taken from the arbitration

award.

McNeal filed a praecipe to enter judgment against M & J Auto Repair on

July 21, 2022, and a judgment was entered on that date. Over a year later,

on July 19, 2023, McNeal moved to amend the caption on the judgment and

all other filings in the matter to identify the defendant as “Marvin Morris, a/k/a

Marvin Morrin, Doing Business as M & J Auto Repair and M & J’s Auto Body,

Unregistered Fictitious Names.”

Morris, with the aid of the same counsel who had previously represented

M & J Auto Repair, objected to the amendment on a number of grounds. He

contended that the judgment could not be amended because “M & J Auto

Repair” was “not a legal entity,” making the judgment null and void. Further,

he argued that he could not be named as a defendant in the case because,

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from January 5, 2017, until the time of McNeal’s injury, “Ebony Morris” was

the owner and operator of the business located at the address of the incident

(3946 Bott Street). Morris also claimed that he had never been served the

complaint or received legal process in the case, preventing the trial court from

exercising personal jurisdiction over him.

The objections lodged by Morris were inconsistent with several exhibits

attached to McNeal’s motion to amend. In addition to the handwritten

signature made by Morris on the verification to the answer filed on behalf of

M & J Auto Repair, other documents tended to establish that Morris did

business under that name. Property Assessment records and the most recent

deed to the property located at 3946 Bott Street reflected that Morris was the

owner at the relevant times.1

The Court of Common Pleas of Philadelphia County (trial court) granted

McNeal’s motion to amend the pleadings and the judgment to reflect that

Morris was the sole defendant. He then timely appealed the order and filed a

1925(b) statement. The trial court, in turn, entered a 1925(a) opinion giving

1 The reference to “Ebony Morris” in Exhibit D of Morris’ response to the motion

to amend does not identify that third party as the owner of the subject property. The exhibit is a purported license for the business located at 3946 Bott Street. Only the “business mailing address” in the document includes then the name, “Morris Ebony,” and the designated lines for the “Owner contact address” were left blank. See Response to Motion to Amend the Judgment, 8/7/2023, at ¶¶ 5-6, Exhibit D.

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its reasons why the order should be upheld. See Trial Court 1925(a) Opinion,

11/14/2023, at 4-13.

The trial court first stated that Morris’ appeal should be quashed as

interlocutory under Pa.R.A.P. 312 because the amendment of a pleading is

generally not immediately reviewable. See id., at 4-6. The trial court found

further that the amendment was not barred by the statute of limitations

because it only corrected a designation of the defendant without adding a new

party, and Morris had himself participated in litigating the case, preventing

the amendment of the judgment from causing him any prejudice. See id., at

6-13.

In his brief, Morris now argues that the trial court erred in granting the

motion to amend because it lacked subject matter jurisdiction. Alternatively,

he contends that the amendment of the judgment was barred by the statute

of limitations under Pa.R.C.P. 1033(b) because McNeal’s motion to amend the

pleadings and judgment was filed well beyond the two-year limitations period

for her negligence claim. See Appellant’s Brief, at 3.

McNeal responds that Morris waived his claim that the trial court erred

in “correcting” the named defendant in the judgment because he only asserted

in his 1925(b) statement that the trial court erred in allowing her to add “a

new and additional party.” She also states that Morris’ claims lack merit

because her amendment was timely, and the trial court had jurisdiction to

amend the judgment under Rule 1033.

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Finally, the parties have disputed the import of our decision in Thom v.

CDM Auto Sales, 221 A.3d 681 (Pa. Super. 2019). Morris construes the

opinion as requiring a motion to amend a judgment to be filed within 90 days

of the date on which the statute of limitations period to file a claim has expired.

The limitations period in this case ended on April 17, 2021, and the 90th day

after that date fell on July 16, 2021. The motion to amend the judgment was

filed over two years after that date, on July 19, 2023. In Morris’ view, the

motion to amend was untimely, and the trial court lacked jurisdiction to grant

it under Rule 1033.

McNeal acknowledges that Thom contains language suggesting that her

motion to amend was untimely under Rule 1033, but she urges this Court to

disregard that part of the opinion as dictum because it was not essential to

the holding of the case.

A trial court’s ruling on a motion to amend pleadings is subject to an

abuse of discretion standard of review. See The Brickman Grp., Ltd v. CGU

Ins. Co., 865 A.2d 918, 9267 (Pa. Super. 2004) (citation omitted); see

General Mach. Corp. v. Feldman, 507 A.2d 831, 834 (Pa. Super. 1986)

(noting that the application of Rule 1033 is subject to the discretion of the trial

court). To the extent the trial court’s decision involves the interpretation of a

Pennsylvania Rule of Civil Procedure, the issue involves a question of law, and

the standard of review is de novo. See Boatin v. Miller, 955 A.2d 424, 427

(Pa. Super. 2008); Huntington Nat’l Bank v. K-Cor, Inc., 107 A.3d 783,

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785 (Pa. Super. 2014). When applying the Pennsylvania Rules of Civil

Procedure, they must be liberally construed. See Pa.R.C.P. 126.

As a preliminary matter, we find that Morris properly appealed the order

granting an amendment of the judgment, as it was not interlocutory in nature.

At the time of the amendment, all claims between the parties had already

been disposed of.2 This made the order immediately appealable as of right

pursuant to Pa.R.A.P. 341. See EMC Mortg., LLC v. Biddle, 114 A.3d 1057,

1059 (Pa. Super. 2015) (holding that order granting motion to reassess

damages and modify default judgment was final, appealable order).

Moreover, the issue regarding the timeliness of McNeal’s motion to

amend was sufficiently raised before the trial court to preserve this claim for

appellate review. Morris has consistently claimed that the amendment was

barred by the statute of limitations and Rule 1033. The arguments Morris has

made on appeal are all the same as, or subsidiary to, the grounds he asserted

below. See Pa.R.A.P. 1925(b)(4)(v) (errors enumerated in a 1925(b)

2 The trial court cited caselaw holding that the amendment of pleadings is generally interlocutory and not subject to immediate appeal. See Trial Court 1925(a) Opinion, 11/14/2023, at 6 (citing Horowitz v. Universal Underwriters, 580 A.2d 395, 397 (Pa. Super. 1990)). Here, however, a judgment was entered following an arbitration award that was not appealed, making it final. See Stivers Temp. Pers. v. Brown, 789 A.2d 292, 294 (Pa. Super. 2001) (“Upon entry of the compulsory arbitration award on the docket and appropriate notice, the award took the force and effect of a final judgment.”).

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statement are “deemed to include every subsidiary issue that was raised in

the trial court[.]”).

Next, we address Morris’ argument that the trial court was barred from

granting McNeal’s motion to amend because she did not file an appeal from

the compulsory arbitration award within 30 days from its entry pursuant to 42

Pa.C.S.A. § 7361(d), Pa.R.C.P. 1307(d), and Pa.R.C.P. 1308(a)(1).

A party has a right to appeal a compulsory arbitration award by

requesting a trial de novo. See 42 Pa.C.S.A. § 7361(d). To do so, a party

must “file an appeal to the court of common pleas . . . under Pa.R.C.P. 1308”

within 30 days from the date the award is entered. Stivers Temp. Pers.,

Inc. v. Brown, 789 A.2d 292, 295 (Pa. Super. 2001); see also Pa.R.C.P.

1308(a)(1) (providing that an appeal from an arbitration award shall be taken

by filing a notice of appeal “not later than thirty days after the day on which

the prothonotary makes the notation on the docket that notice of entry of the

arbitration award has been provided[.]”).

“Where the record and the award disclose an obvious and unambiguous

error in the award in mathematics or language [in a compulsory arbitration

award], the court, on application of a party within the thirty-day period

allowed for appeal, may mold the award to the same extent and with the same

effect as the court may mold the verdict of a jury.” Pa.R.C.P. 1307(d).

The timing of an appeal of an arbitration award is a jurisdictional

question. See Lee v. Guerin, 735 A.2d 1280, 1281 (Pa. Super. 1999).

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Where an arbitration award is not appealed, the judgment “shall be enforced

as any other judgment of the court.” 42 Pa.C.S.A. § 7361(d).

We find that the authorities relied upon by Morris are inapplicable.

Crucially, McNeal was not seeking to vacate or otherwise mold the judgment

to correct a patent error pursuant to Pa.R.C.P. 1307(d). She was instead

seeking to keep the judgment intact and make it enforceable by correcting the

name of the identified defendant. Morris himself describes “M & J Auto Repair”

as an “unregistered fictitious name” that refers to a non-existent entity, so by

his own admission, the party name on the pleadings and judgment was

incorrect. The trial court was therefore permitted to grant McNeal’s motion to

amend the judgment as long as doing so comported with the rule that governs

such corrections – Pa.R.C.P. 1033.

On this point, Morris and McNeal again differ, offering conflicting

interpretations of Rule 1033 which outlines the procedures for correcting a

party’s name in a case. The rule provides as follows:

(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 . . . .

(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.

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Pa.R.C.P. 1033 (emphases added).

Although Rule 1033 ostensibly covers the amendment of pleadings, this

Court has clarified that final judgments may be amended pursuant to the rule

as well. See Thom, 221 A.3d at 685-86.

In this case, McNeal’s claim accrued on the date of the dog bite incident,

on April 17, 2019. She filed suit within the two-year limitations period, which

ended on April 17, 2021.3 Judgement was entered on July 21, 2022. The

motion to amend the caption of the judgment was filed beyond the limitations

period, on July 19, 2023.

Under Rule 1033(a), McNeal was free to seek “[a]n amendment

correcting the name of a party . . . by leave of court . . . at any time[.] The

next section of the rule, part (b), allowed this correction of a party’s name as

long as (1) McNeal’s cause of action in the original pleading remained

unchanged, (2) Morris received notice of the “commencement of the action”

no more than “90 days after the period provided by law for commencing the

action,” (3) Morris was notified of the action at such a time that he was not

“prejudiced in maintaining a defense,” and (4) Morris “knew or should have

known that the action would have been brought against [him] but for a

mistake concerning the identity of the proper party.”

The trial court found that all four elements of Rule 1033 were met, and

we find no error in that determination. McNeal’s underlying claim against ____________________________________________

3 The statute of limitations period for a claim of negligence is two years from

the date that the claim accrues. See 42 Pa.C.S.A. § 5524(2).

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M & J Auto Repair was the same claim she directed against Morris by way of

her requested amendment. There is evidence in the record that Morris was

fully apprised of the allegations in McNeal’s pleadings; Morris himself signed

the verification in the answer submitted on behalf of M & J Auto Repair.

Since Morris was duly notified of the nature of McNeal’s claims at the

outset of the case, he could not have been prejudiced in maintaining a

defense. There is ample evidence in the record that Morris owned and

operated M & J Auto Repair at the time of the incident, so he knew or should

have known that the action would have been brought against him but for

McNeal’s mistake concerning the identity of the proper party. Morris’

purported knowledge that McNeal made an error in identifying the proper

party should have made him aware that the action would have been brought

against him but for that mistake.

As to the timeliness of McNeal’s motion to amend, we also agree with

the trial court that Rule 1033 did not bar the correction of the judgment. It is

well established that the rule allows the correction of a party’s name “at any

time,” including after the running of the statute of limitations for the claims at

issue, as long as the named defendant is not prejudiced by the amendment.

See e.g., Jacobs Air Conditioning and Heating v. Associated Heating

and Air Conditioning, 531 A.2d 494, 496 (Pa. Super. 1987); see also

Goolsby v. Papanikolau, 637 A.2d 707, 711 (Pa. Cmwlth. 1994).

This Court has nevertheless commented that Rule 1033 prohibits a

party’s name from being amended in a judgment “if more than 90 days have

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passed since the expiration of the statute of limitations.” Thom, 221 A.3d at

685. Morris argues that under Thom, McNeal could not amend the judgment

because her motion to amend was filed on July 19, 2023, a date over 90 days

after the limitations period had ended (April 17, 2021).

We are unpersuaded by this argument, and instead agree with McNeal

that Thom does not mandate the reversal of the subject amendment of the

judgment. Our Supreme Court has defined obiter dictum (or dicta in the plural

form) as: “A judicial comment made while delivering a judicial opinion, but

one that is unnecessary to the decision in the case and therefore not

precedential (although it may be considered persuasive).” Commonwealth

v. Romero, 183 A.3d 364, 400 n.18 (Pa. 2018) (quoting BLACK'S LAW

DICTIONARY 1240 (10th ed. 2014)). The comment in Thom relied upon by

Morris qualifies as such.4

In Thom, a plaintiff sought to correct the name of the defendant in a

default judgment. No appeal was taken from the judgment, and the motion

to amend the defendant’s name was filed within the statute of limitations ____________________________________________

4 This Court has further distinguished obiter dictum, which has no precedential

value, from “judicial dictum,” which does. The latter term refers to a court’s expression of opinion on a point involved in the case that is not essential to disposition, but which “becomes authoritative when the court expressly declares it to be a guide for future conduct.” HTR Restaurants, Inc. v. Erie Ins. Exch., 260 A.3d 978, 989 n.3. (Pa. Super. 2021), aff'd, 307 A.3d 49 (Pa. 2023) (citing 21 C.J.S. Courts § 226; Dictum Revisited, 4 Stan. L. Rev. 509 (1952)). There is no indication in Thom that the expression of opinion now relied upon by Morris as to Rule 1033 was intended to be treated as authoritative.

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period. There was no question that the plaintiff had attempted to sue the

correct party, and that the defendant was not prejudiced because it had fully

taken part in the proceedings from the outset of the suit. The trial court

denied the motion on the sole ground that Rule 1033 “applied only to

amendments of pleadings and not judgments.” 221 A.3d at 684.

The narrow issue before us in Thom therefore was whether Rule 1033

applies with respect to the amendment of judgments even though the

language of the rule only refers to pleadings. We reasoned that an “absurd

result” would follow from allowing all pleadings to be amended in a case, but

not the judgment. Id., at 686. In the holding of the opinion, we stated that

rule 1033 would “apply to judgments in situations where, as here, pleadings

are amended to correct the name of a party (not to add a new party) after

entry of judgment but within 90 days of the applicable statute of limitations

period.” Id.

Because the plaintiff in Thom sought to amend the judgment within the

limitations period, it was not necessary for the purposes of disposition for this

Court to opine on whether it would have been timely beyond 90 days from

that point, as are the circumstances in the present matter. Accordingly, Thom

cannot be read as binding precedent that prohibits the amendment of a

judgment outside of 90 days from the date on which the statute of limitations

has run. See Romero, 183 A.3d at 400 n.18.

To conclude, the trial court’s interpretation of Rule 1033 must be upheld

because it comported with the rule’s plain language. Part (b) of the rule

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provides that an amendment changing the name of a party will relate back to

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[.]” Pa.R.C.P. 1033(b). These timing provisions only concern (1)

when suit was filed, and (2) the statutory period for filing suit. The date of

the amendment correcting a party’s name is only relevant insofar as it would

result in that party being “prejudiced in maintaining a defense on the

merits[.]” Id.5

Here, Morris received notice of the “institution of the action” no later

than September 28, 2020, when he personally verified the answer to McNeal’s

complaint. The day falling “90 days after the period provided by the law for

commencing the action” in this case was July 16, 2021. Morris therefore

received notice of the institution of the action long before the date required

by Rule 1033(b). Neither the trial court, nor this Court, have discerned any

prejudice that Morris could have incurred in defending against the claim as a

result of the amendment. Thus, the trial court’s order did not run afoul of the

rule, and the amendment of the judgment must stand.

Order affirmed.

President Judge Emeritus Stevens joins the Opinion. ____________________________________________

5 The Explanatory Comment (2017) of Rule 1033 clarifies that part (b) was

meant 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[.]”

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Judge Lane did not participate in the consideration or decision of this

case.

Date: 08/14/2024

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