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HomeMy WebLinkAbout97-5133 civilANNIE A. KROL-KNIGHT, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : V. : : JOHN E. GESCHWINDT, JR. : NO. 97-5133 CIVIL TERM Defendant : : CIVIL ACTION - LAW IN BF.: P?.~INTIFF'S MOTION TO AMEND COMPLAINT BEFORE GUIDO, J. ORDER OF COURT AND NOW, this /~~- day of NOVEMBER, Plaintiff's Motion for Leave to Amend Complaint is GRANTED insofar as she may amend all references to John E. Geschwindt, Jr. or John E. Geschwindt to read "John K. Geschwindt". By th Edward E. Guido, J. Susan Kay Candiello, Esquire For the Plaintiff Thomas J. Williams, Esquire For the Defendant :sld ANNIE A. KROL-KNIGHT, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERED COUNTY, PENNSYLVg2XlIA l JOHN E. GESCHWINDT, JR. : NO. 97-5133 CIVIL TERM Defendant : : CIVIL ACTION - I_~W IN RE: PLAINTIFF'S MOTION TO AMEND COMPLAINT BEFORE GUIDO, J. OPINION AND ORDER OF COURT On September 22, 1995, Plaintiff's auto was involved in a collision with an auto being operated by John K. Geschwindt. John K. Geschwindt was only seventeen (17) years old and was operating a car owned by his father, John E. Geschwindt at the time of the accident. On September 22, 1997, this action was commenced by a praecipe for a writ of summons filed against "John E. Geschwindt, Jr." The Sheriff of York County served the writ of summons. His return of service indicated that it was served upon "John E. Geschwindt, Jr." by handing a copy of it to the said "John E. Geschwindt, Jr." at 24 Corvair Drive, Dillsburg, Pa. 17019. No person named John E. Geschwindt, Jr. lived at that address. Both John K. Geschwindt and John E. Geschwindt lived at that address. Service was actually accepted by John E. Geschwindt.~ On February 2, 1998, defense counsel filed a praecipe for entry of appearance. The caption appearing on said document ~ John E. Geschwindt denies any knowledge of what the writ of summons was about. NO. 97-5133 CIVIL TERM deleted the "Jr." from the name of John E. Geschwindt. Defense counsel's praecipe also indicated that he was entering his appearance on behalf of John E. Geschwindt rather than the "John E. Geschwindt, Jr." who had been sued.2 On February 25, 1998, defense Counsel ruled upon Plaintiff to file a complaint. On March 18, 1998, Plaintiff filed a complaint using the same caption as defense counsel, i.e. referring to the Defendant as John E. Geschwindt rather than "John E. Geschwindt, Jr.".3 After the filing of various responsive pleadings it eventually became obvious to Plaintiff that the operator of the vehicle was named John K. Geschwindt, not John E. Geschwindt, Jr. On August 28, 1998, well after the expiration of the applicable statute of limitation, she filed a Motion for Leave to Amend Complaint asking to change the name of the Defendant from John E. Geschwindt Jr. to John K. Geschwindt. On September 8, 1998, this Court issued a Rule upon Defendant to show cause why the requested relief should not be granted. We further directed that the parties proceed in accordance with Pa. Rule of Civil Procedure 206.7. Defendant filed an answer objecting to the 2The caption on all of the pleadings filed by defense counsel refers to the Defendant as John E. Geschwindt rather than "John E. Geschwindt, Jr.". 3In the complaint Plaintiff alleges that the Defendant "John E. Geschwindt" was operating the vehicle involved in the accident. She further states that he "is an adult individual, but was seventeen (17) years of age at the time of the incident..." . NO. 97-5133 CIVIL TERM requested relief. Petitioner did not take depositions or otherwise add to the record.4 Briefs were filed and argument was held. This matter is now ready for disposition. DISCUSSION Defendant concedes that the Court has broad discretion in deciding whether to grant leave to amend a pleading. Hamilton v. Bechtel, 441 Pa. Super. 390, 657 A.2d 980 (1995). However, it is Defendant's position that Plaintiff is actually seeking to add a new party to the action rather than merely correcting the name of the party. Citing Anderson Equip. Co. v. Huchber, 456 Pa. Super. 535, ~690 A.2d 1239 (1997) Defendant argues that we should deny the request. The applicable law governing our decision was set forth by the Anderson Court as follows: [I]n cases where the statute of limitation has expired and a party seeks to amend its pleading to correct the name of the party, the issue is whether the proposed amendment adds a new party to the litigation or merely corrects a party name. 'If an amendment constitutes a simple correcting of the name of a party, it should be allowed, but if the amendment in effect adds a new party, it should be prohibited.' (citations omitted) 4The relevant portions of Rule 206.7 provides as follows: RULE 206.7 PROCEDURE AFTER ISSUANCE OF RULE TO SHOW CAUSE · · · (c) If an answer is filed raising disputed issues of material fact, the petitioner may take depositions on those issues, or such other discovery as the court allows, within the time set forth in the order of the court. If the petitioner does not do so, the petition shall be decided on petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer shall be deemed admitted for the purpose of this subdivision. NO. 97-5133 CIVIL TERM 456 Pa. Super. at 540-541, 690 A.2d at 1241. In the instant case we are satisfied that the amendment should be allowed. In the Anderson case the plaintiff originally sued several Defendants including a "John Doe 1". Upon discovering that "John Doe 1" was actually Anderson Equipment Company, Plaintiff moved to amend her caption to reflect the correct name of Defendant "John Doe 1" as Anderson Equipment Company. Leave to amend was granted by the lower Court. On appeal the Superior Court reversed stating: It is readily apparent herein that John Doe 1 is not an incorrect name of Anderson Equipment Company. John Doe 1 is an entirely fictitious name for a fictitious entity having no relation to appellant. Anderson, 456 Pa. Super. at 541, 690 A.2d at 1241. In the case before us the Plaintiff correctly sued John Geschwindt, the driver of the vehicle. She merely used the wrong middle initial and an inappropriate suffix. Therefore, it is distinguishable from the Anderson case. It is readily apparent that John E. Geschwindt, Jr. is the incorrect name of a real person, i.e. the intended defendant is John Geschwindt. Defendant also relies on the case of Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). In that case the plaintiff sued "Anthony Cotoia, a minor," for injuries sustained in a motor vehicle accident. The defendant, Anthony Cotoia, responded in his answer that he was neither a minor nor the operator of the vehicle, but that he was the father of Robert Cotoia, who was the operator of the vehicle involved in the accident. Plaintiff NO. 97-5133 CIVIL TERM sought leave to amend. The Supreme Court denied the amendment holding that "an amendment of the complaint, after the statute of limitations has run, to bring in a new and distinct party to the action cannot be permitted." Saracina, 417 Pa. at 83, 208 A.2d at 766. However, the instant case is clearly distinguishable. Although there were two John Geschwindts living at the Defendant's address, there was no John E. Geschwindt, Jr. Therefore, unlike the Plaintiff in Saracina, the Plaintiff in the case before us did not sue the wrong individual. As noted above, she sued the right individual, albeit using the wrong middle initial and adding an inappropriate suffix,s If Plaintiff's caption had merely named the Defendant as John Geschwindt there is no doubt that we should allow the amendment to add the correct middle initial so as to avoid confusion with his father.6 Likewise, if Defendant's father were named Albert rather than John, there would not be any question that we should allow Plaintiff to correct the caption. We see no difference in the instant case. Therefore, we will allow the amendment. SSee also Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). 6In all likelihood, the Defendant himself would have requested such an amendment. NO. 97-5133 CIVIL TERM ORDER day of NOVEMBER, Plaintiff's Motion for Leave to Amend Complaint is GRANTED insofar as she may amend all references to John E. Geschwindt, Jr. or John E. Geschwindt to read "John K. Geschwindt". By the Court, Susan Kay Candiello, Esquire For the Plaintiff Thomas J. Williams, Esquire For the Defendant :sld /s/ Edward E. Guido Edward E. Guido, J.