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HomeMy WebLinkAbout2007-7760 Civil (2) EDGAR G. RIOS AND : IN THE COURT OF COMMON PLEAS OF LILLIAN RIOS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. : : JOHN B. RIVERA, : Defendant : NO. 07-7760 CIVIL IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT th AND NOW , this 13 day of May, 2008, upon consideration of the Defendant’s Preliminary Objections, Plaintiffs’ Response thereto, and after argument; IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Preliminary OVERRULED. Objections are By the Court, M. L. Ebert, Jr., J. Peter J. Russo, Esquire Elizabeth J. Saylor, Esquire Attorneys for Juan D. Rivera 3800 Market Street Camp Hill, PA 17011 John A. Kane, Esquire Edward J. Murphy, Jr., Esquire Kelley and Murphy, LLP Attorneys for Edgar G. and Lillian Rios 240 North Third Street th 8 Floor Harrisburg, PA 17101 EDGAR G. RIOS AND : IN THE COURT OF COMMON PLEAS OF LILLIAN RIOS, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : V. : : JOHN B. RIVERA, : Defendant : NO. 07-7760 CIVIL IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS TO PLAINTIFFS’ COMPLAINT BEFORE BAYLEY, J. AND EBERT, J. ORDER AND OPINION OF COURT EBERT, J., May 13, 2008 - FACTS and BRIEF PROCEDURAL HISTORY Plaintiffs commenced action in this matter on December 28, 2007, by filing a Complaint 1 and Notice of same with the Prothonotary of this Court. In the four counts set out in the Complaint, the Plaintiffs allege action for Breach of Contract, Unjust Enrichment, 2 Misrepresentation/Fraud, and Promissory Estoppel. The allegations are that Defendant failed to 3 pay back a $42,500 loan. The Complaint was captioned against “John B. Rivera.” John B. Rivera was served by the Sheriff of this Court on January 8, 2008, at 7:40 p.m., by handing a copy of the Complaint and Notice to “Connie Naugle, fiancée, adult in charge at 2032 Harvest 1 Plaintiff’s Complaint (Hereinafter, Pl. Compl. ___). 2 Pl. Compl. 2-6. 3 Pl. Compl. 1. 2 Drive, Mechanicsburg, Pennsylvania. An affidavit attesting to this service was filed with this 4 Court. From a reading of the Complaint, it would appear that the statute of limitations in this case expired no later than January 11, 2008. Upon receipt of the Complaint on January 29, 2008, “Juan D. Rivera” filed the preliminary objection in the nature of a demurrer to the entire Complaint basically alleging that “Juan D. Rivera is not the Defendant named in this action and thus is not a party to the above- captioned proceeding” and that the statute of limitations precluded the addition of a new Defendant. In response, the Plaintiffs filed their first amended Complaint seeking to amend the 5 caption of the case to read “Juan D. Rivera, Defendant.” Plaintiffs claim that Juan is known as 6 “John” and that he uses “John” and “Juan” interchangeably. Defendant’s counsel, by letter dated February 21, 2008, indicated that he did not consent to amendment of the Complaint and consequently the matter was briefed and set down for argument on February 27, 2008. At argument the Defendant requested the Court to dismiss the Plaintiffs’ Complaint, grant his preliminary objections, and deny Plaintiffs leave to amend their Complaint because: A. Plaintiffs failed to name the correct party; 4 Sheriff’s Certificate of Service. 5 Defendant’s Preliminary Objections. 6 Plaintiffs’ Amended Complaint. 3 B. Allowing Plaintiffs to amend their Complaint to name Juan D. Rivera after the expiration of the applicable statute of limitations would result in an impermissible 7 substitution of a new party. DISCUSSION 1. Applicable Law. In determining whether a party should be allowed to substitute names of parties sued, this Court is bound by the standard as set out by the Superior Court of Pennsylvania in Cianchetti v. Kaylen, 361 A.2d 842 (Pa. Super. 1976). The operative test is “whether the right party was sued but under the wrong designation, or whether a wrong person was sued and the amendment was designated to substitute another distinct party.” Id. at 844. In Cianchetti, Plaintiff was involved in a motor vehicle accident with Defendant, Henry J. Kaylen. The parties attempted settlement through insurance carriers but no settlement was reached. Plaintiff initiated suit, but named “Harry” as the Defendant. Service was unsuccessful at first, but eventually the sheriff was able to serve the complaint bearing the name “Harry” on Henry. Thereafter, Plaintiff attempted to amend the complaint to read “Henry” but the trial court denied the amendment. Id. at 843. On appeal, the Superior Court of Pennsylvania found that since the Appellant answered to “Harry” at time served by the sheriff, and all communications through the insurance company were conducted with reference to “Harry,” it 7 Defendant’s Brief in Support of Preliminary Objections, 2 (Hereinafter, Def. Br. ____). 4 was proper for Plaintiff to believe that “Harry” was a proper designation for the Defendant, Henry J. Kaylen. Id. at 845. The Superior Court, therefore, found that the lower court erred in denying Plaintiff’s Petition to Amend. Before the statute of limitations has run, it appears clear that the law in Pennsylvania liberally permits amendments correcting a name, including the correction of a spelling. If the statute of limitations has expired, such amendments are allowed where no new and distinct party is brought into the action. Saracina v. Catoia, 208 A.2d 764 (Pa. 1965). The question for determination then is whether the right party was sued but under a wrong name, or whether a wrong party was sued and the amendment was designed to substitute another and distinct party. 2. Application of Law to Facts. The Court finds that the statute of limitations in this case expired on or before January 11, 2008. Given this fact, the question now before the Court is, did the Plaintiffs sue the right party under a wrong name or was the wrong party sued and the first amended Complaint filed by the Plaintiffs designed to substitute another and distinct party. Stated another way, the issue in the instant case is whether the Appellants, in fact, sued Juan D. Rivera but merely used the erroneous designation of “John B. Rivera.” An examination of the record supports the conclusion that Plaintiffs sued Juan D. Rivera, but miscaptioned their Complaint. First of all, the Complaint in the instant case alleged that the Defendant “John B. Rivera” resides at 2032 Harvest Drive, Mechanicsburg, Pennsylvania, 5 17055. This is the precise location where the Cumberland County Sheriff’s Office served an adult individual with a copy of the Complaint naming John B. Rivera on January 8, 2008. Juan D. Rivera admits that he was served with the Complaint. (See paragraph 2 of the Preliminary Objections). Additionally, the Court recognizes that it is common knowledge that the name “John” is the anglicized form of the Spanish name “Juan.” In Plaintiffs’ Complaint, at Exhibit A, is an email from Jriverapa@aol.com to erios@americhoice.com providing a spread sheet of Rivera’s various debts which included credit card bills, car loan payments, and school tuition totaling $42,482.32. This email was dated January 9, 2003. Exhibit B of the Plaintiffs’ Complaint indicates that the Plaintiff, Edgar G. Rios (erios), sent a letter to Goldman, Sachs & Co. authorizing the payment of $42,500 to “Juan D. Rivera and Milagros Rivera” five days after the email. This sum approximately equals the amount of money provided to Juan Rivera by the Plaintiffs rounded up to the next even $100.00 amount above the debt listed in Exhibit A. Clearly on this record, Juan D. Rivera, who was served with a copy of the Complaint, was the right person named as a Defendant under what was a wrong designation. While the Court does not rely on any factual matters outlined in the Defendant’s brief in making this decision, the correctness of the decision becomes even more apparent when one reviews what the Defendant himself discloses in his brief. First, Defendant admits, as shown in the documentation found in Exhibits B through E, that he, Juan D. Rivera, does, in fact, reside at 6 2032 Harvest Drive, Mechanicsburg, Pennsylvania. Again, this is the exact location where the Cumberland County Sheriff’s Department served a copy of the Complaint. Secondly, at Exhibit th A, the Defendant provides a copy of a notice from the 17 Judicial Circuit in and for Broward County, Florida, indicating that Juan D. Rivera had been, in fact, married to Milagros Lozada Rivera. This is the name of the very same individual listed in the Plaintiffs’ letter (Exhibit A of Plaintiffs’ Complaint) authorizing the transfer of $42, 500 to Juan D. Rivera and Milagros Lozada Rivera. Third, at Exhibit F, the Defendant submits the result of a name search for John Rivera to indicate that there are persons named John Rivera residing in the Harrisburg area. None of the names listed have the address of 2032 Harvest Drive, Mechanicsburg, Pennsylvania, which was the address where Juan D. Rivera was served with the Complaint. Finally, the Defendant admits that the Plaintiffs and he were personal friends for over a decade. This certainly could support the conclusion that Plaintiffs were, in fact, lending the money to the Juan D. Rivera they knew and not some unknown “John B. Rivera.” Accordingly, the following order will be entered: 7 ORDER OF COURT th AND NOW , this 13 day of May, 2008, the Defendant’s Preliminary Objections, Plaintiffs’ Response thereto, and after argument; IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Preliminary OVERRULED. Objections are By the Court, M. L. Ebert, Jr., J. John A. Kane, Esquire Edward J. Murphy, Jr., Esquire Kelley and Murphy, LLP Attorneys for Plaintiffs Peter J. Russo, Esquire Elizabeth J. Saylor, Esquire Attorneys for Defendant 8