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HomeMy WebLinkAbout12-14-09IN RE: ESTATE OF IN THE COURT OF COMMON PLEAS OF ,~ ROBERT M. MUMMA, CUMBERLAND COUNTY, P T7I .VANI~ E V Deceased ~ ~ C7 r ~ 7 r- ORPHAN'S COURT DIVISION -;> zm ., ~ `_'~ ,>° C-'~ rri N0.21-86-398 = °© _ ~~~~ ~~ ~ ~ :; ; ^''T o { ~' ~ v, ~, MOTION FOR VACATION OF APPOINTMENT OF ATTORNEY BUCKLEY AS AUDTTOR AND NOW comes Robert M. Mumma, II, pro se, and files the instant Motion for Vacation of Appointment of Attorney Buckley as Auditor, and in support thercef avers as follows: 1. The undersigned Movant is Robert M. Mumma, II, an adult individual, pro se, who is a beneficiary of the above-captioned Estate and the Trusts created under the Will of the Decedent. 2. The Movant is a tn~stee of contingent beneficiaries of the above-captioned Estate and Trusts. 3. The undersigned is a pro se Objector to the accountings and inventories filed by the Co-Executrices in the above-captioned Estate. 4. The undersigned previously filed objections in October 1991 (via Attorney Shields and Attorney Costopoulos), in May 2004 (via Miller Lipsitt, LLC), and in January 2008 (pro se). 5. Barbara Mann Mumma is a pro se Objector to the accountings and inventories filed by the Co-Executrices in the above-captioned Estate. 6. In a Petition for Appointment of Auditor filed January 5, 2005, the Co- Executrices sought the appointment of an Auditor to pass upon the objections which the Co- Executrixes averred had nosed "questions offact" In an Order dated January 6, 2005, Judge Oler appointed Taylor Andrews, Esquire as Auditor in the above-captioned Estate. 8. Following a hearing held on August 18, 2008, Judge Oler issued an Order dated September 19, 2008 that vacated the appointment of Taylor Andrews, Esquire as Auditor and appointed Joseph D. Buckley, Esquire in his stead. 9. Said Order of September 19, 2008 further provided that all matters previously referred to the Auditor shall be deemed referred to the new Auditor in accordance with the terms of the referral. 10. Subsequent to the appointment of the Auditor in January 2005, upon the filing of a motion or petition by the parties hereto, Judge Oler has utilized a practice of referring said filings with the Orphan's Court to the Auditor for purposes of a r~oa-mended order and an interim report. 11. Notwithstanding the fact that the Orphans' Court issued at least five (5) Orders in 2005 and at least twenty (20) Orders between January 2008 and September 2008 which referred matters to the Auditor for purposes of a recommended order and interim report, the Auditor has not filed or served such recommended orders and interim reports despite the express language set forth in said Orphans' Court's Orders. 12. Notwithstanding the fact that the Orphans' Court appointed an Auditor in this case in January 2005, and a replacement Auditor in September 2008, and notwithstanding the fact that Judge Oler has referred multiple motions and petitions to the Auditor for the purposes of a recommended order and interim report, it is believed and therefore averred that the Auditor has not filed and served an interim report since Attorney Andrews filed the "Auditor's Interim Report, December 2005" on December 30, 2005 which addressed limited issues pertaining to discovery. 13. Subsequent to his appointment on September 19, 2008, it is believed and therefore averred that Attomey Buckley has not filed and served an auditor's report. 14. In an Order entered on March 25, 2009, Judge Oler ruled that the Auditor shall be required to file his auditor's report within sixty (60) days following the close of the scheduled hearings of Apri121-23, 2009. 15. Although the Objectors are unaware if the Auditor has filed any other applications for an extension of time within which to submit a timely auditor's report (insofar as no such applications were served or copied to the undersigned), no other Order has been issued by the Orphans' CouR which was served on the Objectors regarding any granting of any extensions of time within which to file a timely auditor's report. 16. According to Pennsylvania Orphans' Court Rule 8.2, the auditor "shall file his report within ninety days after his appointment, unless, upon application, the court extends the time; anc~ in default thereof, his appointment may be vacated and compensation and reimbursement for services and expenses denied." 17. Given that Pennsylvania Orphans' Court Rule 8.2 provides that the auditor's report shall be filed within the first ninety days after the appointment of the auditor or within a period of time extended by the court, Attorney Buckley has failed to file an auditor's report within the requisite time period. 18. Pennsylvania Orphans' Court Rule 8.2 provides for the vacation of the appointment of the Auditor whenever he defaults in the timely filing of an auditor's report. 19. Pennsylvania Orphans' Court Rule 8.2 provides for the denial of the auditor's compensation and reimbursement for services and expenses whenever he defaults in the timely filing of an auditor's report. 20. Pursuant to Pennsylvania Orphans' Court Rule 8.2, Attorney Buckley is in default with respect to the filing of the auditor's report. 21. Attorney Buckley conducted hearings in this matter in Apri12009, in June 2009, in August 2009, and in October 2009. Additional hearings are scheduled for December 14, 15, 16, 17, and 18, 2009, with potential additional dates to follow in 2010. 22. Attorney Buckley has indicated that the Executrices should be lauded or commended for transferring assets into the Estate notwithstanding the Objectors' averments that said assets were stolen or otherwise obtained by unlawful or conspiratorial means; this averment stems from the following excerpt from the Auditor's hearing on October 29, 2009: MR. MIJMMA: I am showing that the positions they took were that the estate waspre- imm;neot to them and that they were going to do anything they could to increase the value of the estate, even ifthe -even at the expense - THE AUDITOR: Mr. Mumma - MR. MUMMA: -- of other people in other corporations. THE AUDITOR: And I hope they did that. MR MUMMA: You hope they did? THE AUDITOR: That's their job. MR. MUMMA: That's all I need to hear. Thank you. THE AUDITOR: Thats tbeir job as the executrixes of the estate. Mr. Mumma, do you have more questions? MR. MUMMA: I don't have anymore questions. (emphasis added). 23. Attorney Buckley made such statements notwithstanding that the witnesses had testified that the plans of liquidation for Pennsylvania Supply Company and Kim Company (as approved by said companies' shareholders) were not followed inasmuch as the corporate assets were not distributed on a pro rata basis to the companies' shareholders, and that said liquidations were utilized to obtain a different result beneficial to the Co-Executrices, namely to transfer such corporate assets into Estate assets wherein they eventually became subject to the 5°lo marital withdrawal. 24. in addition to the foregoing example, there are other instances of Attorney Buckley's statements and conduct during the Auditor's hearings which demonshate bias against the Objectors. Such instances include, but are not limited to, the following: (a) On the first day of the proceedings, prior to the taking of any evidence or testimony, Attorney Buckley indicated that he would recommend denying the Objector's motion for a jury trial. (N.T. p. 14). (b) After the completion of the expert testimony of Jonathan Crist, Esquire on Apri121, 2009, and after Estate counsel indicated "No objection," said witness's expert report dated May 25, 2004 was introduced into evidence as Exhibit O-2 and admitted by Attorney Buckley. (N.T. pp. 234-235). Thereafter, at the hearing on August 6, 2009, Attorney Buckley ruled that said expert report was not to be admitted. (N.T. pp. 2341-2342). (c) When the Objectors questioned Co-Executrix Barbara McK. Mumma as to whether she knew who owned one of the largest assets (the Silver Springs Quarry), Attorney Buckley interjected (there being no objection being raised by the Estate counsel) that: "I don't think that's really relevant" and directed the Objectors to ask another question. (N.T. p. 714). (d) Notwithstanding the Objector's pending request(s) for a jury trial pursuant to 20 Pa.C.S.A. § 777(a), Attorney Buckley stated: "I told you Pennsy Supply Inc. and Pennsy Supply, comma, Inc., I really don't care which is which. They are the same to me." (N.T. p. 1106). 6 25. Insofar as an auditor is required to hear all of the evidence and testimony to be presented lIl the matter prior t0 detPmi ring witness credibility, findings of fact, and conclusions of law, and otherwise to preside over the proceedings in a fair and dispassionate fashion without making interim detemunations or similar judgments until the completion thereof, Attorney Buckley's statements and conduct suggest that he has already made up his mind with respect to the merits of the Objections and that same will be overruled or otherwise discredited. 26. During the course of the Auditor's proceedings as completed through the October 2009 hearings, testimony was presented with respect to the "UPA" case involving a fire at a Dauphin County property and the subsequent litigation which has presented potential liability for various members of the Mumma family. Thereafter, a memorandum opinion and order was issued by Pennsylvania Superior Court on November 2, 2009 in the UPA case (a certified copy of the Superior Court's opinion is attached hereto as Exhibit "A'~. Therein the Superior Court determined that the Co-Executrix Lisa Morgan had perpetrated "an active misrepresentation of the identity of the owner of the property" by virtue of her personal alteration of a real estate lease agreement. (See, slip.op. at p. 12). 27. In light of the recent Superior Court decision in the UPA case, the presentation of additional testimony of the Co-Executrix Lisa Morgan would be germane to the pending motions for removal of the Executrices/Tnutees. Said motions were previously referred to the Auditor by the Orphans' Court for the purposes of an interim report and recommended order. 28. At the close of the hearings in October 2009, counsel for the Co-Executrices advised the Auditor that they intended to move to dismiss the Objections; the Auditor indicated that said counsel should file a written motion to dismiss the objections. Thereafter, on November 13, 2009, said counsel filed a Motion to Dismiss Objections with the Orphans' Court. In so ruling, the Auditor impermissibly re-assigned the burden of proof: instead of the Estate being required to establish that its accountings were filed properly, the Auditor's Wiling now forces the Objectors to establish that the accountings were filed improperly. 29. Tn permitting the Executrices and the Estate counsel to file a Motion to Dismiss Objections, Attorney Buckley failed to cite any statute, Wile, decisional law, or any other legal authority (substantive or procedural) which places the burden of proof upon an objector to an accounting to establish conclusively the propriety, legitimacy, and justifiability of the Executrices' filings with the Orphans' Court. 30. Inasmuch as a beneficiary filing an objection to an accounting is seeking clarification, explanation, and justification as to the propriety of a given transaction or occurrence reflected in the Estate's accountings and inventories, and inasmuch as the Executrices and the Estate counsel must bear the responsibility in the first instance for demonstrating that the accountings and inventories were filed properly, Attorney Buckley erred by assigning that burden of proof to the Objectors by way of requiring the Objectors to respond to a wholesale Motion to Dismiss Objections. (See, 1'reluninary Objections to Motion to Dismiss Objections filed with the Orphans' Court on November 30, 2009). 31. On July 28, 2009, a Notice to Produce under Pa.R.C.P. 234.3 was directed to Co- Executrix Lisa Morgan; said Notice to Produce directed said Co-Executrix to produce copies of five (5) separate Estate-related items at the Auditor's hearing scheduled for August 3, 3009. After the Estate counsel objected to the production at the hearing, Attorney Buckley heard from the parties in interest during the morning session of the August 3, 2009 hearing, including testimony from Lisa Morgan (N.T., Vol. VII, pp. 1482-1635). Thereafter, Attorney Buckley ruled on the record that Lisa Morgan was required to produce four (4) of the five (5) items listed in the notice to produce. Subsequently, when the four (4) items were not produced by Lisa Morgan, the undersigned filed on September 11, 2009 a Motion to Compel Compliance with the Auditor's Ruling. In an Order dated September 16, 2009, Judge Oler issued a Wile to show cause and referred the matter to the auditor for an interim report and recommended order. The Executrices returned the rule on September 30, 2009. Thereafter, in an Order dated October 23, 2009, Judge Oler denied the undersigned's Motion to Compel Compliance with the Auditor's Ruling, and specifically stated that said denial was based "upon the recommendation of the Auditor." 32. After hearing the parties in interest on August 3, 2009, and upon issuing a Wiling on the record at that time requiring the four (4) items to be produced by Lisa Morgan, and thereafter changing his mind and recommending to Judge Oler that the four (4) items need not be produced after all, Attorney Buckley has unnecessarily limited and restricted the Objectors' access to and right to review diapositive evidence (including, but not limited to, evidence relating to Lebanon Rock and High-Spec, Inc.) which the Objectors would otherwise be entitled to present in support of their objections. 33. Despite multiple attempts to obtain copies of the Decedent's correspondence files, whether through formal motions or through argumem to Attorney Buckley during the auditor's hearings or at the pre-trial conference, Attorney Buckley has failed to require the production of the Decedent's correspondence files. Inasmuch as the Decedent's correspondence files would contain dispositive evidence (such as evidence of shareholders agreements), Attorney Buckley's failure to require the production of said correspondence files necessarily eliminates, limits, and restricts the evidence which the Objectors would otherwise be entitled to present in support of their objections. 34. At various points during the course of the Auditor's hearings, Attorney Buckley has admonished the pro se Objectors with respect to the content and manner of their intended presentation of evidence. By way of just one (1) example, Attorney Buckley proclaimed that the undersigned was "muddling the record." (N.T., Vol. XIII, p. 3000). 35. Pursuant to Cumberland County Rule of Civil Procedure 208.3(ax9), the undersigned has not obtained the concurrence of any counsel to the other interested parties inasmuch as the prior statements and representations of said counsel have indicated that the undersigned would not receive cooperation from them with respect to such a motion. 36. Pursuant to Cumberland Cou~y Rule of Civil Procedure 208.3(a)(2), the Honorable Wesley Oler has previously Wiled on prior motions filed by the parties hereto. 10 WHEREFORE, the undersigned Movant respectfully requests that this Honorable Court issue an appropriate Order GRANTING the instant Motion for the Vacation of the Appointment of Attorney Buckley as the Auditor in this case, or in the alternative, issue an appropriate Order wkrich schedules a hearing on this matter so that a successor auditor may be appointed. Respectfully submitted, obert M. Mumma, II 840 Market St. -Suite 33333 Lemoyne, PA 17043 (717)612-9720 PROSE 11 CERTIFICATE OF SERVICE I, Robert M. Mumma, II, pro se, do hereby certify that I caused a copy of the foregoing Motion for Vacation of Appointment of Attorney Buckley as Auditor to be served this date by U.S. Mail, first class, postage prepaid, addressed to: Brady Green, Esquire Morgan, Lewis & Bockius, LLP 1701 Market Street Philadelphia, PA 19103-2921 George B. Faller, Jr., Esquire Manson Law Offices 10 East High Street Carlisle, PA 17013 Barbara Mann Mumma 541 Bridgeview Dr. Lemoyne, PA 19043 Linda Mumma Roth PO Box 480 Mechanicsburg, PA 17055 Joseph D. Buckley, Esquire Court-Appointed Auditor 1237 Holly Pike Carlisle, PA 17013 DATE: December 14, 2009 BY: _~ Robert M. Mumma, II 840 Market St. -Ste. 33333 Lemoyne, PA 17043 717-612-9720 PROSE 12 J.A16026/09 UPA ELECTRICAL SPECIALISTS, INC., NICHOLAS SPAGNOLO, CARMEN SPAGNOLO, JAMES EISENHARD, DAVID MILLS, WILLIAM WEAVER and SPYRIDON VERNALIS, Appellants v. ROTHMAN, SCHUBERT, and REED REALTORS, ESTATE OF ROBERT M. MUMMA, LISA MUMMA MORGAN, Individually and as Executrix of the Estate of ROBERT M. MUMMA, ROBERT M. MUMMA, II, BARBARA MUMMA, formerly known as BARBARA M. MCCLURE, LINDA M. MUMMA, formerly known as LINDA M. ROTH, BARBARA MCK. MUMMA, Individually and as Executrix of the Estate of ROBERT M. MUMMA, MUMMA REALTY ASSOCIATES and MUMMA REALTY ASSOCIATES, INC., Individually and d/b/a MUMMA REALTY ASSOCIATES I, INC. and MUMMA REALTY ASSOCIATES, I, Appellees IN THE SUPERIOR COURT OF PENNSYLVANIA No. 727 MDA 2008 Appeal from the Order entered March 26, 2008, In the Court of Common Pleas of Dauphin County Civil at No(s): 5312 CV 1998 2 J.A16026/09 ROTHMAN, SCHUBERT, and REED REALTORS, Appellants v. UPA ELECTRICAL SPECIALISTS, INC., NICHOLAS SPAGNOLO, CARMEN SPAGNOLO, JAMES EISENHARD, DAVID MILLS, WILLIAM WEAVER and SPYRIDON VERNALIS, ESTATE OF ROBERT M. MUMMA, LISA MUMMA MORGAN, Individually. and as Executrix of the Estate of ROBERT M. MOMMA, ROBERT M. MOMMA, II, BARBARA MOMMA, formerly known as BARBARA M. MCCLURE, LINDA M. MUMMA, formerly known as LINDA M. ROTH, BARBARA MCK. MUMMA, Individually and as Executrix of the Estate of ROBERT M. MOMMA, MOMMA REALTY ASSOCIATES and MOMMA REALTY ASSOCIATES, INC., Individually and d/b/a MOMMA REALTY ASSOCIATES I, INC. and MOMMA REALTY ASSOCIATES, I, Appellees No. 824 MDA 2008 Appeal from the Order entered December 29, 2000, In the Court of Common Pleas of Dauphin County Civil at No(s): 5312 CV 1998 BEFORE: ALLEN, FREEDBERG and CLELAND, JJ. MEMORANDUM: FILED: November 2, 2009 IN THE SUPERIOR COURT OF PENNSYLVANIA 3 J.A16026/09 Appellants UPA Electrical Specialists, Inc., et al. ("UPA"), plaintiffs below, appeal from an order entered denying their petition to amend complaint and granting summary judgment in favor of Appellees Mumma Realty Associates, Inc., and Lisa Mumma Morgan. UPA also appeals from a later .order entered granting summary judgment in favor of Appellee Rothman, Schubert and Reed Realtors ("RSR"). RSR perfected a separate cross-appeal contending that if the grant of summary judgment in favor of RSR is reversed then the denial of the petition to amend complaint and the grant of summary judgment in favor of Mumma Realty. Associates, Inc., and Lisa Mumma Morgan should be likewise reversed. We reverse the order denying the petition to amend complaint and granting summary judgment in favor of Appellees Mumma Realty Associates, Inc., and Lisa Mumma Morgan. We also reverse the order granting summary judgment in favor of RSR. The facts may be summarized as follows. UPA, a commercial electrical business, leased commercial property located at 2700 Paxton Street in Harrisburg. The written (ease agreement is dated November 6, 1996. The lease initially identified the landlord of the property as RSR, agent for "Mumma Realty Associates I". However, some time after Carmen Spagnola of UPA signed the lease and forwarded it for further execution, Lisa Mumma Morgan, who ultimately signed the lease as vice president of Mumma Realty Associates, Inc., made handwritten interlineations in two places, first adding "Inc." to the landlord designation on the first page, thus identifying the 4 J.A16026/09 landlord as RSR, agent for "Mumma Realty Associates I, Inc.", and second adding "Inc." on the signature line on the last page, thus identifying the Mumma entity signature as "Mumma Relaty (sic) Associates, Inc." An arson-related fire destroyed the leased premises on January 3, 1997. The fire started in an area of the building occupied by another tenant. The fire destroyed certain personal property, equipment, inventory, and records of UPA and interrupted UPA's business operations. UPA filed a complaint December 2, 1998, against Mumma Realty Associates, Inc., Lisa Mumma Morgan, and RSR. The UPA suit was based in negligence and claimed that losses incurred in the fire resulted variously from: allowing UPA to occupy a building which had not been equipped with an appropriate sprinkler system; failing to install appropriate fire walls and/or fire rated partitions; allowing UPA to occupy a building that lacked appropriate fire walls and/or fire rated partitions; allowing UPA to occupy a building that violated applicable building codes; failing to obtain an occupancy permit; and failing to equip the building or assure that the building was equipped with an adequate fire detection system. On June 23, 1999, Mumma Realty Associates, Inc., and Lisa Mumma Morgan filed an answer to the complaint. The answer averred that an entity identified as Mumma Realty Associates, a tenancy in common, rather than Mumma Realty Associates, Inc., was the record owner of the leased premises. On October 29, 1999, Mumma Realty Associates, Inc., and Lisa 5 ).A16026/09 Mumma Morgan filed a motion for summary judgment seeking entry of judgment in their favor on the ground that the entity named in the complaint, i. e., Mumma Realty Associates, Inc., was not the record owner of the leased premises. On November 5, 1999, RSR likewise filed a motion for summary judgment seeking entry of judgment in its favor on the ground that it was not responsible for any failure of the building to comply with local codes and that it was the responsibility of the owner of the building to assure compliance. On December 10, 1999, UPA filed a petition to amend the complaint in order to name the record owner, Mumma Realty Associates. By memorandum and order of December 29, 2000, the trial court denied UPA's petition to amend the complaint to add the record owner, Mumma Realty Associates, on the ground that such amendment was not permissible given the expiration of the two year statute of limitations. The trial court then concluded that there were no genuine issues of material fact surrounding either Mumma Realty Associates, Inc., which was not the record owner of the property, or Lisa Mumma Morgan, sued in her capacity as vice. president of Mumma Realty Associates, Inc., and that entry of summary judgment for Mumma Realty Associates, Inc., and Lisa Mumma Morgan was therefore appropriate. The trial court also denied the motion for summary judgment filed by RSR on the ground that issues of fact remained surrounding RSR's duties regarding the leased premises and on the further ground that discovery was ongoing. 6 J.A16026/09 On August 12, 2002, the trial court permitted RSR, then the only remaining defendant, to join Mumma Realty Associates, Inc., Mumma Realty Associates, and Lisa Mumma Morgan, among others, as additional defendants for contribution and indemnity. On February 29, 2008, RSR again filed a motion for summary judgment contending that it did not owe any duty to UPA to assure compliance with local codes. On March 25, 2008, the trial court entered an order granting summary judgment in favor of RSR and dismissing UPA's claims. No memorandum or opinion was issued in support of the order. On April 22, 2008, UPA filed notice of appeal seeking review of the trial court's order of December 29, 2000, denying the petition to amend complaint and entering summary judgment in favor of Mumma Realty Associates, Inc., and Lisa Mumma Morgan, and further seeking review of the trial court's order of March 25, 2008, entering summary judgment in favor of RSR. On May 5, 2008, RSR filed a cross notice of appeal contending that if the March 25, 2008, grant of summary judgment in favor of RSR is reversed on appeal taken by UPA then the December 29, 2000, denial of the petition to amend complaint and grant of summary judgment in favor of Mumma Realty Associates, Inc., and Lisa Mumma Morgan should be likewise reversed to permit RSR to pursue its potential claims against those Mumma parties. A preliminary matter is worthy of attention. This litigation is more than a decade old. The record is voluminous. We have before us two 7 ].A16026/09 appeals and across-appeal challenging two orders entered by two trial court judges more than seven years apart. Notwithstanding all of this, the record discloses a complete lack of any Pennsylvania Rule of Appellate Procedure Rule 1925 activity. Rule 1925 requires that "upon receipt of the notice of appeal, the judge who entered the order giving rise to the notice of appeal, if the reasons for the order do not already appear of record, shalt forthwith file of record at least a brief opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify in writing the place in the record where such reasons may be found." Pa.R.A.P. 1925(a)(1). "The Rules of Appellate Procedure make the filing of a 1925(a) opinion mandatory and this opinion must set forth the reasons for the rulings of the trial judge or must specify in writing the place in the record where the reasons may be found. The purpose of this rule is to provide the appellate court with a statement of reasons for the order so entered in order to permit effective and meaningful review of the lower court decisions." Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (citations omitted). Additionally, "[i]f the judge entering the order giving rise to the notice of appeal desires clarification of the errors complained of on appeal, the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal." Pa. R.A.P. 1925 (b) (parentheticals omitted). In sum, "[t]he absence of a trial court opinion poses a substantial impediment to 8 1.A16026/09 meaningful and effective appellate review. Rule 1925 is intended to aid trial judges in identifying and focusing upon those issues which the parties plan to raise on appeal. Rule 1925 is thus a crucial component of the appellate process." Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998). The contemplated statement of errors and the required opinion operate together to facilitate appellate review. Absent either, or in this case both, effective appellate review is hampered. That said, in light of the age on this litigation and nature of the issues presented, we are disinclined to remand for compliance with Rule 1925 and will instead proceed with review. The present appeals require review of denial of a petition to amend complaint. "[T]he decision to grant or deny permission to amend is within the discretion of the trial court and will be reversed only upon a showing of abuse of discretion." Pitts v. Port East Pulaski Highway, 581 A.2d 677, 678 (Pa. Super. 1990). "In order to secure a determination of cases on their merits the trial court should grant, whenever possible, a petition to change the name on a pleading." Zercher v. Coca-Cola USA, 651 A.2d 1133, 1134 (Pa. Super. 1994). The present appeals also require review of grants of summary judgment. The standard for review of an order granting or denying a motion for summary judgment is as follows: We 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. Only where there is no 9 J.A16026/09 genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered. Our scope of review of a trial court's order granting or denying summary judgment is plenary, and our standard of review is clear: the trial court's order will be reversed only where it is established that the court committed an error of law or abused its discretion. Northern Ins. Co. of New York v. Resinski, 827 A.2d 1240, 1242 (Pa. Super. 2003), quoting Pappas v. Asbel, 768 A.2d 1089, 1095 (Pa. 2001), cert. denied, 536 U.S. 938 (2002). Rule 1033 of the Pennsylvania Rules of Civil Procedure provides: A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his 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. Pa.R.C.P. 1033. In B/aine v. York Financial Corporation, 847 A.2d 727 (Pa. Super. 2004), this Court observed: The Supreme Court of Pennsylvania has set forth the general rule for attempts to amend a pleading after the statute of limitations has run: 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. 10 J.A16026/09 Girardi v. Laquin Lumber Company, 232 Pa. 1, 81 A. 63 (1911). However, this Court has refused to apply this rule in cases where the defendant has actively misled the plaintiff into believing that the correct defendant has been named. Lafferty v. Alan Wex/er Agency, Inc., 393 Pa.Super. 400, 574 A.2d 671 (1990). The defendant's actions in misleading the plaintiff need not be intentional. Id. The Plaintiff bears the burden of proving active concealment through clear and convincing evidence. Montanya v. McGonegal, 757 A.2d 947, 950 (Pa.Super.2000) (citations omitted). B/aine, $47 A.2d at 729. The lease here expressly. identified the landlord of the property as RSR,_ agent for "Mumma Realty Associates I". However, after Carmen Spagnola of UPA signed the lease and forwarded it for further execution, Lisa Mumma Morgan made handwritten interlineations in two places: (1) adding "Inc." to the landlord designation on the first page, thus taking an affirmative step to identify the landlord as RSR, agent for "Mumma Realty Associates I, Inc.", and (2) adding "Inc." on the signature line of the last page, thus taking a further affirmative step to identify the Mumma entity signature as "Mumma Relaty (sic) Associates, Inc." In this case Mumma Realty Associates, Inc., and Lisa Mumma Morgan admit that "Plaintiffs were first put on notice that Defendants, MRA, Inc, and Lisa Mumma Morgan, denied ownership of the property at issue when they filed their Answer to Plaintiffs' Complaint . .." Brief of Appellees Mumma Realty Associates, Inc., and Lisa Mumma Morgan at 4. Notably, that Answer was filed June 23, 1999, nearly six moths after expiration of the two year 11 J.A16026/09 statute of limitations. The record further reflects that leases for two other tenants of this same building expressly identify Mumma Realty Associates, Inc., as the owner of the property. UPA Opposition to Summary Judgment, Exhibit 3. Lisa Mumma Morgan altered the lease agreement to represent that the landlord and lessor of the property was Mumma Realty Associates, Inc. Other leases for the same building showed the owner of the property as Mumma Realty Associates, Inc. Lisa Mumma Morgan and Mumma Realty Associates, Inc., did not deny ownership and assert that Mumma Realty Associates was the record owner until after expiration of the statute of limitations. There is an overriding sense that in the context of this litigation the Mumma entities conducted their business as Mumma Realty Associates, Inc., and then when identified as such, announced otherwise, and pointed to a separate entity at a time when suit against that now disclosed separate entity was complicated by a statute of limitations. we conclude that this combination of facts establishes an active misrepresentation of the identity of the owner of the property and the identity of a potentially liable defendant for claims like those asserted in the complaint. Accordingly, we find that the trial court abused its discretion in denying petition to amend complaint and therefore reverse the order of December 29, 2000, in that regard. UPA also challenges the trial court's grant of summary judgment in favor of Mumma Realty Associates, Inc. and Lisa Mumma Morgan. The trial 12 J.A16026/09 court concluded that there were no genuine issues of material fact surrounding either Mumma Realty Associates, Inc., which was not the record owner of the property, or Lisa Mumma Morgan, sued in her capacity as vice president of Mumma Realty Associates, Inc., and that entry of summary judgment for Mumma Realty Associates, Inc., and Lisa Mumma Morgan was therefore appropriate. This determination was based exclusively on the fact that Mumma Realty Associates (the tenancy in common) not Mumma Realty Associates, Inc., was the true record owner of the property. The mere fact that Mumma Realty Associates, Inc., is not the record owner of the property does not necessarily preclude its potential liability for the negligence claims asserted by UPA. Notably, the lease agreement identifies Mumma Realty Associates,. Inc., as the landlord and the record otherwise discloses that Mumma Realty Associates, Inc., is the property manager of the leased premises responsible for day-to-day activities. Motion for Summary Judgment of Mumma Realty Associates, Inc., and Lisa Mumma Morgan at ¶ 9 and Exhibit C; Deposition of Lisa Mumma Morgan, 10/26/99 at 20. As property manger, Mumma Realty Associates, Inc., had the express duty to "do all other things necessary to maintain the Premises in a clean, safe and orderly condition and to ensure compliance with all federal, state and local statutes, ordinances, rules and regulations applicable to the operation of the Premises." Motion for Summary Judgment of Mumma Realty Associates, Inc., and Lisa Mumma Morgan at Exhibit C. Lisa 13 J.A16026/09 Mumma Morgan is vice president of Mumma Realty Associates, Inc., and is a co-tenant of the Mumma Realty Associates tenancy in common. Accordingly, we find that the trial court erred in granting summary judgment as it did for Mumma Realty Associates, Inc., and Lisa Mumma Morgan and therefore reverse the order of December 29, 2000, in that regard. UPA also appeals from the order entered granting summary judgment in favor of RSR. UPA contends that summary judgment was inappropriate because, at the very least, there are unresolved factual issues surrounding RSR's duties regarding the' leased premises. In particular, UPA directs our attention to § 324A of Restatement (Second) of Torts as a basis for potential liability and avoidance of summary judgment. That section of the Restatement provides as follows: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking. Restatement (Second) of Torts, § 324A. The Comment to § 324A provides, in pertinent parts, as follows: 14 J.A16026/09 Comment: ***** b. This Section applies to any undertaking to render services to another, where the actor's negligent conduct in the manner of performance of his undertaking, or his failure to exercise reasonable care to complete it, or to protect the third person when he discontinues it, results in physical harm to the third person. or his things. It applies both to undertakings for consideration, and to those which are gratuitous. ***** Illustration: 1. A operates a grocery store. An electric light hanging over one of the aisles of the store becomes defective, and A calls B Electric Company to repair it. B Company sends a workman, who repairs the light, but leaves the fixture so insecurely attached that it falls upon and injures C, a customer in the store -who is walking down the aisle. B Company is subject to liability to C. d. Undertaking duty owed to third person. Even where the negligence of the actor does not create any new risk or increase an existing one, he is still subject to liability if, by his undertaking with .the other, he has undertaken a duty which the other owes to the third person. Thus a managing agent who takes charge of a building for the owner, and agrees with him to keep it in proper repair, assumes the responsibility of performing the owner's duty to others in that respect. He is therefore subject to liability if his negligent failure to repair results in injury to an invitee upon the premises who falls upon a defective stairway, or to a pedestrian in the street who is hurt by a falling sign. Such liability is in addition to that which he may have to the person to whom he has agreed to render the services. Illustrations: 2. The A Telephone Compahy employs B to inspect its telephone poles.. B negligently inspects and approves a 15 J.A16026/09 pole adjoining the public highway. Because of its defective condition the pole falls upon and injures a traveler upon the highway. B is subject to liability to the traveler. 3. The A Company employs B as superintendent of building construction work. One of his duties to A Company is to inspect a scaffold erected by an independent contractor, to make sure that it is safe for A Company's workmen. B negligently fails to inspect the scaffold, and as a result of its defective condition, which would have been discovered by proper inspection, the scaffold collapses and C, a workman employed by A Company, is injured. B is subject to liability to C. Restatement (Second) of Torts, § 324A, Comments b and d. The Pennsylvania Supreme Court has made the following observations regarding § 324A: Although this Court has never had occasion to consider § 324A of the Restatement, the essential provisions of this section have been the law in Pennsylvania for many years. See, e.g., Evans v. Otis E/evator Company, 403 Pa. 13, 18, 168 A.2d 573, 575-76 (1961) ("[A] party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons-strangers to the contract- will not be injured thereby .... It is not the contract per se which creates the duty; it is the law .which imposes the duty because of the nature of the undertaking in the contract."); Pascare//a v. Ke//ey, 378 Pa. 18, 105 A.2d 70, 73 (1954) (citation omitted) (" '[I]f a party make a gratuitous engagement and actually enters on the execution of the business and so negligently does it from want of care that another suffers damage thereby, an action will lie for this misfeasance' ...."). In order to state a cause of action under § 324A, a complaint must contain factual allegations sufficient to establish the legal requirement that the defendant has undertaken "to render services to another which he should recognize as necessary for the protection of a third person" 16 J.A16026/09 (in this case, the plaintiff, appellee). This is essentially a requirement of foreseeability. See, e,g., .Kane v, Hartford .Accident and Indemnity Company, 98 Cal.App.3d 350, 159 Cal.Rptr. 446 (1979) ("The section is predicated upon, and in no way alters, the traditional requirement of a foreseeable harm to a foreseeable class of plaintiffs."). Thus, even if the defendant has undertaken to render a service to another, and the plaintiff (third person) has suffered physical harm, if there was no reason that the defendant should have foreseen that his actions were necessary for the protection of the plaintiff, no cause of action will lie under § 324A. Cantwe// v. A//egheny County, 483 A.2d 1350, 1353-54 (Pa. 1984) (footnote omitted). In the present case, RSR was party to a management and leasing agreement with Mumma Realty Associates, Inc., under which RSR had a duty to arrange for regular maintenance as well as arrange for and supervise major repairs. Management and Leasing Agreement, Deposition of Lisa Mumma Morgan, 10/26/99, Exhibit 1. Testimony of Lisa Mumma Morgan disclosed that RSR's duties under this agreement with Mumma Realty Associates, Inc., encompassed obtaining permits required by governmental entities for repairs or renovations. Deposition of Lisa Mumma Morgan, 10/26/99 at 52-53. The lease agreement identified RSR as landlord and as agent for Mumma Reaity Associates, Inc. As indicated, Mumma Realty Associates, Inc., as property manager, had the express duty to "do all other things necessary to maintain the Premises in a clean, .safe and orderly condition and to ensure compliance with all federal, state and local statutes, ordinances, rules and regulations applicable to the operation of the 17 J.A16026/09 Premises." Motion for Summary Judgment of Mumma Realty Associates,. Inc., and Lisa Mumma Morgan at Exhibit C. Thus, the Mumma entities empowered RSR as agent for the very entity responsible for ensuring that the property was safe and ensuring that the property was in compliance with law. We find that this evidence creates a genuine issue of fact that RSR undertook to render services for the Mumma entities which RSR should have recognized as necessary for the protection the leased premised and UPA's property. There are sufficient facts from which one could conclude that RSR should have foreseen that some action might have been necessary to protect the leased. premises and UPA's property. "Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff." Roche v. Ug/y Duck/ing Car Sa/es, Inc., 879 A.Zd 785, 790 (Pa. Super. 2005), quoting Migyanko v. Thist/ewaite, 419 A.2d 12, 14 (Pa. Super. 1980). As the record here lacks that undeniable clarity, we find that the trial court erred in granting summary judgment for RSR and therefore reverse the order of March 26, 2008, in that regard. Finally, we note that RSR perfected a separate cross-appeal contending that if the grant of summary judgment in favor of RSR is reversed then the denial of the petition to amend complaint and the grant of summary judgment in favor of Mumma Realty Associates, Inc., and Lisa 18 J.A16026/09 Mumma Morgan should be likewise reversed. Since we have reversed the denial of the petition to amend complaint and also reversed the grant of summary judgment in favor of Mumma Realty Associates, Inc., and Lisa Mumma Morgan, there is no further relief to be afforded and the RSR's cross-appeal is rendered moot. Order of December 29, 2000, denying the petition to amend complaint is REVERSED Order of December 29, 2000 granting summary judgment in favor of Appellees Mumma Realty Associates, Inc., and Lisa Mumma Morgan is REVERSED. Order of March 26, 2008, granting summary judgment in favor of Appellee Rothman, Schubert and Reed Realtors is REVERSED. Cross-appeal of Rothman, Schubert and Reed Realtors is DISMISSED as moot. REMANDED for further proceedings consistent with this Memorandum. Jurisdiction RELINQUISHED. Judgment Entered. Deputy Prothonotary Date: November 2, 2009 19