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HomeMy WebLinkAbout97-5923 civilMATT CORPORATION, Plaintiff Vo SAMIR J. SROUJI, and GILLIAN R. SROUJI, his wife, individually and t/d/b/a LEMOYNE SQUARE ASSOCIATES, Defendants · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 97-5923 · CIVIL ACTION-LAW o IN RE: MOTION TO AMEND ANSWER WITH NEW MATTER AND COUNTERCLAIM BEFORE HESS, J. ORDER AND NOW, this ~t day of June, 1999, the defendants' motion to amend answer with new matter and counterclaim is DENIED. BY THE COURT, C. Lee Anderson, Esquire Attorney for Defendants ~I~A. Hess, J. Michael L. Bangs, Esquire Attorney for Plaintiff MATT CORPORATION, Plaintiff Vo SAMIR J. SROUJI, and GILLIAN R. SROUJI, his wife, individually and t/d~/a LEMOYNE SQUARE ASSOCIATES, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-5923 CIVIL ACTION-LAW IN RE: MOTION TO AMEND ANSWER WITH NEW MATTER AND COUNTERCLAIM BEFORE HESS, J. OPINION AND ORDER This matter is before the court on a petition to amend an answer with new matter and counterclaim by the defendants. According to the complaint, the plaintiff provided management and real estate services to defendants for property owned by the defendants. Plaintiff alleges that he was authorized by defendants to provide a former tenant, Landmark Commercial Realty, a cost incentive to move from the defendants' property, as well as underwrite the tenant's relocation expenses for which defendants were to later reimburse plaintiff. Defendants also allegedly authorized plaintiff to incur expenses for the purposes of securing a new tenant (Mainstay). This case was commenced by the filing of a complaint on October 24, 1997. Defendants filed an answer with new matter on December 23, 1997. On or about March 23, 1999, defendants filed an amended answer with new matter and counterclaim titled Fraud. Plaintiff filed preliminary objections on April 5, 1999. On April 8, 1999, defendants filed a motion and rule to show cause seeking leave of court to file an amended answer. 97-5923 CIVIL The policy of Pennsylvania courts is that amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those instances where surprise or prejudice to the other party would result, or where the proposed amendment is against a positive role of law. Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 137, 467 A.2d 1164, 1167 (1983), citing Postemack v. American Casualty Company of Reading, 421 Pa. 21,218 A.2d 350 (1966); Gregg v. Gacon Construction Company, 249 Pa. Super. 377, 378 A.2d 344 (1977); Sands v. Forrest, 290 Pa. Super. 48, 434 A.2d 122 (1981); Puleo v. Broad Street Hospital, 267 Pa. Super. 581,407 A.2d 394 (1979); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). The meaning of prejudice and surprise in the context of Rule 1033 amendments to pleadings has been developed in a number of opinions. In Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973) the court wrote: All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed... (448 Pa. at 380, 293 A.2d at 357) (emphasis in original; footnote omitted). Defendants filed their amended answer with new matter and counterclaim approximately fifteen (15) months after the filing of its original answer and new matter. Defendants did not plead that they have only become aware of facts giving rise to the counterclaim. Defendants admit in their counterclaim-that they had knowledge of the 97-5923 CIVIL subject addendum to the lease, which allegedly obligated him to reimburse Mainstay or plaintiff for improvements made to the property in May 1996 and September 1997. Defendant Srouji testified at a discovery deposition that he saw the signed lease in September, 1997, three months prior to the filing of his original answer with new matter. The scheduled trial date is rapidly approaching and this court recognizes that the respective parties need adequate time to prepare for the trial. We are satisfied that the plaintiff would be prejudiced by the untimely filing of defendants' counterclaim. To allow such an amendment affects adversely the plaintiff's ability to prepare for trial because, among other things, it adds a new cause of action not previously pled. Defendant could easily have included the counterclaim with his original answer. We will not now permit it on the eve of trial. In addition to the standard of prejudice or surprise, the law is also well established that a proposed amendment may be denied when it is against a positive role of law. If the proposed amendment is against a positive role of law, its allowance would be futile. Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 138-139, 467 A.2d 1164, 1167, (1983), see also Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978); Associates of Philipsburg v. Hurwitz, 292 Pa. Super. 406, 437 A.2d 447 (1981); Chapman v. City of Philadelphia, 290 Pa. Super. 281,434 A.2d 753 (1981). Such would be the case if the proposed amendment is outside the statute of limitations. In general, the statutory period will begin to mn when the cause of action accrues, i.e. the date on which the injury is sustained. Borough of Miffiinburg v. Heim, 705 A.2d 456, 466-467, (Pa. Super. 1997), citing Pounds v. Lehman, M.D., 384 Pa. Super. 358, 361, 558 A.2d 872, 873 (1989). Our supreme court has held: 97-5923 CIVIL As a matter of general role, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations. (Citations omitted.) Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468, 471 (1983). Turning to the facts of the instant case, defendant, by his own pleading, acknowledges that he was aware of the addendum no later than May 15, 1996, and was at least on notice by this date. The statute of limitations for a cause of action in fraud is two years. 42 Pa.C.S.A. Section 5524. A proposal to amend in the spring of 1999 is therefore outside the statute of limitations. ORDER AND NOW, this~day of June, 1999, the defendants' motion to amend answer with new matter and counterclaim is DENIED. B Y THE COURT, C. Lee Anderson, Esquire Attorney for Defendants · II'ess,'J. Michael L. Bangs, Esquire Attorney for Plaintiff