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HomeMy WebLinkAbout2010-5283 CYNTHIA C. JONES and DANIEL M. : IN THE COURT OF COMMON PLEAS OF JONES, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : MCNAUGHTON COMPANY, P.C., d/b/a : THE MCNAUGHTON COMPANY, d/b/a : MCNAUGHTON HOMES, and : HAMPTON CONSTRUCTION : MANAGEMENT, LIMITED d/b/a : HAMPTON CONSTRUCTION, LIMITED : DEFENDANTS : 10-5283 CIVIL TERM IN RE: MOTION TO AMEND CAPTION OPINION AND ORDER OF COURT Masland, J., July 13, 2011:-- Cynthia C. Jones and Daniel M. Jones (Plaintiffs) filed a Motion to Amend 1 Caption to include McNaughton Homes as a defendant (Additional Defendant). The Plaintiffs contend (1) the amendment to the caption does not bring a new party to the suit, but rather corrects the name of the party; and (2) Additional Defendant has already been properly served, albeit under an incorrect designation, and therefore has received proper notice and will not be prejudiced by having to defend this suit. For the following reasons, the court agrees and grants the Plaintiffs’ Motion to Amend the Caption. I. Facts Plaintiffs began this lawsuit after construction problems resulted in flooding of their property located in the Good Hope Farm South development. Additional Defendant is the land and home developer of Good Hope Farm South. Additional The court notes that McNaughton Homes would not be an “additional” defendant in a 1 technical sense, but uses that moniker herein to assist in distinguishing the names of the various McNaughton defendants. 10-5283 CIVIL TERM Defendant is registered with the Pennsylvania Department of State Corporations Bureau as a fictitious name owned by “McNaughton Co.” There is no McNaughton Co. listed as a corporate entity with the Pennsylvania Department of State. Similar business names listed by the Pennsylvania Department of State include McNaughton Company P.C. and The McNaughton Company (Originally Named Defendants). The Originally Named Defendants are owned and operated by the McNaughton family. The Originally Named Defendants stem from a single family-owned business, McNaughton Company P.C. After several years, the family business formed Additional Defendant to separate the construction and development aspects of the business from the preexisting accounting firm. Today, the two businesses exist as separate, though related entities. This relationship between the businesses and their similar names led to Plaintiffs’ confusion regarding which party to name in the suit. The Plaintiffs filed the Complaint commencing this action on August 26, 2010. The Complaint was served by personal service on Vicki Shannon at 4400 Deer Path Road, Suite 201, Harrisburg. According to the Pennsylvania Department of State, Ms. Shannon is both an officer of the Originally Named Defendants and the corporate secretary of the Additional Defendant. Although the two businesses occupy separate suites, 4400 Deer Path Road is listed as the address for both the Originally Named Defendants and the Additional Defendant. As a corporate officer and corporate secretary, personal service on Ms. Shannon was proper for a suit against the Additional Defendant. As such, Additional Defendant was properly served, albeit by an incorrect designation. -2- 10-5283 CIVIL TERM Over the next several months, Plaintiffs and the Originally Named Defendants litigated the complaint by filing preliminary objections, briefs and discovery documents. At no time did the Originally Named Defendants indicate that they were not the proper party to the lawsuit. It was not until January 10, 2011, more than five months after the initial service of the Complaint, in the Originally Named Defendants’ answer to the Complaint, that they first indicated the Originally Named Defendants were not the proper party. After this revelation, Plaintiffs immediately requested that the caption be amended to include the Additional Defendant, “McNaughton Homes.” II. Discussion A. Substitution of Party The Additional Defendant asserts that the Plaintiffs should not be permitted to amend the caption because the proposed amendment would substitute a new party and would unfairly prejudice the Additional Defendant. Additional Defendants also argue that although they and Originally Named Defendants are both family owned businesses, the two are distinct entities rendering any amendment of the caption to be the equivalent of a substitution of party. The court disagrees. According to Pa. R.C.P. No.1033 a party is permitted to amend a caption at any time. Pa. R.C.P. No. 1033. The Rule states: “[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.” Id. However, changes made subsequent to the running of the statute of limitations are restricted to minor changes, and not substitutions of parties. Id. -3- 10-5283 CIVIL TERM In Wright v. Eureka Tempered Copper Co., 55 A. 978, 978 (Pa. 1903), the plaintiff mistakenly named Eureka Tempered Copper Company instead of the correct Eureka Tempered Copper Works as the defendant. The named defendant had gone out of business several years prior. Although the named defendant still existed on the state’s records, the additional defendant had succeeded the company’s business. As in the instant matter, the plaintiff had properly served an officer of the additional defendant, but had incorrectly designated the named defendant as the defendant. The error in name was not discovered until a few days after the statute of limitations had run. The court allowed the plaintiff to amend the writ to include the additional defendant finding the incorrect name to be a mere mistake of counsel. The court found that service of the additional defendant’s manager brought the correct party into court, although labeled by the wrong name. The court ruled that amendments to party names should be allowed where the “mistake in bringing suit was in the name of the party actually summoned, and not in suing the wrong party.” Just like the named defendant in Wright, Originally Named Defendant is Additional Defendant's predecessor business entity and is still included in the state’s record of corporations. Although the named defendant in Wright had gone out of business, Originally Named Defendant continues to thrive as an accounting firm specializing in the land development industry. However, like Wright’s additional defendant, the Additional Defendant here took over aspects of Originally Named Defendant’s business. Because the Additional Defendant succeeded Originally Named Defendant and was involved in similar business activities, it was reasonable for the Plaintiffs to have designated the incorrect party in the Complaint. However, this was a -4- 10-5283 CIVIL TERM mistake in name only and not in party sued and therefore amending the caption to include the Additional Defendant is proper. Id. By way of contrast, in Fredericks v. Sophocles, 831 A.2d 147, 148 (Pa. Super. Ct. 2003), plaintiff sued defendant in personal injury after plaintiff slipped and was injured on defendant’s property. However, the property in question was owned by a partnership and not by the named defendant. Id. at 150. Plaintiff failed to name the partnership in actual possession of the property as a party to the lawsuit. More than four years after the initial incident, plaintiff moved to amend the caption to include the correct party. Id. at 151. The two-year statute of limitations had run years prior to the plaintiff’s motion. The court denied the plaintiff’s motion to amend the caption finding that it was unreasonable that the plaintiff could not obtain the actual owner of the property within the statute of limitations. Compare the plaintiff in Fredericks to the Plaintiffs in the instant case. Here, the Plaintiffs moved to amend the caption immediately after being alerted that the incorrect party had been named. Where the plaintiff in Fredericks waited over two years to investigate the true owner of the property, the Plaintiffs in the instant case did diligent research on the developer of their property. Although the names and divisions of the Additional Defendant and Originally Named Defendants are not intentionally confusing, the many similar listed names undoubtedly led to problems in the Plaintiffs research. Furthermore, the Plaintiffs moved to amend the caption only five months after the filing of the initial complaint, where the plaintiff in Fredericks waited several years. Although the statute of limitations had run since the time of the incident, the Plaintiffs promptly filed a motion to amend upon discovery of the erroneously designated party. -5- 10-5283 CIVIL TERM B. Notice of Suit to the Additional Defendant The Additional Defendant further contends that an amendment to the caption does not provide them the required notice. The Additional Defendant argues that because they were not party to the original suit, they did not have knowledge of the suit soon enough to prepare an adequate defense. The court disagrees. In Peaceman v. Tedesco, 414 A.2d 1119, 1120 (Pa. Cmwlth. 1980), plaintiff filed a medical malpractice suit. The complaint named Edwin W. Shearburn, III, M.D. as the defendant. Edwin W. Shearburn, III, M.D. was actually the son and colleague of the additional defendant, Edwin W. Shearburn, Jr. M.D. The plaintiff’s medical records contained both names providing the source of likely confusion. Proper service of the lawsuit was made on the additional defendant’s secretary. Then, about five weeks after the statute of limitations had run, the named defendant filed for summary judgment on the basis that the he did not perform the surgery. The plaintiff immediately motioned to amend the caption to include the additional defendant. The court allowed the plaintiff’s amendment finding the mistake to be in designation only noting that service on his secretary at his office provided the additional defendant sufficient notice of the lawsuit. Id. at 121. Notice of the lawsuit eliminates the concern of prejudice to the named defendant since notice provides the named defendant ample opportunity to prepare a defense. Because the named defendant had sufficient knowledge of the suit, the court allowed the plaintiff to amend the caption finding the amendment did not prejudice the named defendant. As in Peaceman, the Additional Defendant had proper notice of the lawsuit as the complaint was served on the Additional Defendant’s corporate secretary, Ms. Shannon -6- 10-5283 CIVIL TERM and her acceptance of service provided sufficient notice of the lawsuit. Because the Additional Defendant had sufficient notice when Ms. Shannon accepted service, there is no prejudice in defending the suit on its merits. Conversely, in Galloway v. Consolidated Natural Gas Co., plaintiff failed to name CNG Transmission Corporation as the additional defendant in a contract dispute. Galloway v. Consolidated Natural Gas Co., 48 Pa. D. & C. 4th 560 (2000). Instead the plaintiff named related companies, CNG, CNG Energy and CNG Gas. However, these originally named defendants were not involved in the contract that was the cause of the lawsuit. More importantly, the additional defendant was not served with the complaint and had no knowledge of the suit. More than two years after the plaintiff received the contract that showed the additional defendant as the proper defendant, plaintiff motioned to amend the caption. Id. at 562. The court denied plaintiff’s motion to amend the caption finding that because the additional defendant was never served with the complaint, there was insufficient notice of the lawsuit. Id. at 564. Furthermore, all the CNG companies were registered separately with the State of Delaware. The CNG companies did not share offices, corporate officers or any business. The additional defendant was not a successor to any of the named defendants and service on the named defendants did not bring the additional defendant into court. The court denied the plaintiff’s motion to amend ruling because the additional defendant did not have proper notice of the suit. Id. at 566. Unlike in Galloway where the additional defendant was never served with the complaint and had no notice of the suit, here the Additional Defendant was served with the complaint and clearly had notice. In addition, where the CNG companies in -7- 10-5283 CIVIL TERM Galloway had always been distinctly separate, the Originally Named Defendants and the Additional Defendant businesses stem from a single company. Furthermore, unlike in Galloway where the businesses operate in separate offices and spheres, the Originally Named Defendants and the Addition Defendant share an office building, as well as, several corporate officers and employees. Because the Additional Defendant had sufficient knowledge of the suit, the proposed amendment to the caption should be permitted. III. Conclusion Based on the foregoing, the court grants the Plaintiff’s motion to amend the complaint’s caption. The following order is entered: ORDER OF COURT AND NOW, this ________ day of July, 2011, upon consideration of Plaintiff’s Motion to Amend the Caption and after an evidentiary hearing and argument on June GRANTEDIT IS HEREBY ORDERED 16, 2011, the Motion is and that the Caption shall henceforth be as follows: CYNTHIA C. JONES and DANIEL M. JONES, : IN THE COURT OF COMMON PLEAS PLAINTIFFS : CUMBERLAND COUNTY, PA : V. : NO. 2010 – 5283 : MCNAUGHTON HOMES, and HAMPTON : CIVIL ACTION – LAW CONSTRUCTION MANAGEMENT, LIMITED : d/b/a HAMPTON CONSTRUCTION, LIMITED, : JURY TRIAL DEMANDED DEFENDANTS : By the Court, _____________________________ Albert H. Masland, J. -8- 10-5283 CIVIL TERM Daryl E. Christopher, Esquire For Plaintiffs John F. Yaninek, Esquire For Defendant McNaughton Company, P.C. Rolf E. Kroll, Esquire :saa -9- CYNTHIA C. JONES and DANIEL M. : IN THE COURT OF COMMON PLEAS OF JONES, : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS : : V. : : MCNAUGHTON COMPANY, P.C., d/b/a : THE MCNAUGHTON COMPANY, d/b/a : MCNAUGHTON HOMES, and : HAMPTON CONSTRUCTION : MANAGEMENT, LIMITED d/b/a : HAMPTON CONSTRUCTION, LIMITED : DEFENDANTS : 10-5283 CIVIL TERM IN RE: MOTION TO AMEND CAPTION ORDER OF COURT AND NOW, this ________ day of July, 2011, upon consideration of Plaintiff’s Motion to Amend the Caption and after an evidentiary hearing and argument on June GRANTEDIT IS HEREBY ORDERED 16, 2011, the Motion is and that the Caption shall henceforth be as follows: CYNTHIA C. JONES and DANIEL M. JONES, : IN THE COURT OF COMMON PLEAS PLAINTIFFS : CUMBERLAND COUNTY, PA : V. : NO. 2010 – 5283 : MCNAUGHTON HOMES, and HAMPTON : CIVIL ACTION – LAW CONSTRUCTION MANAGEMENT, LIMITED : d/b/a HAMPTON CONSTRUCTION, LIMITED, : JURY TRIAL DEMANDED DEFENDANTS : By the Court, _____________________________ Albert H. Masland, J. 10-5283 CIVIL TERM Daryl E. Christopher, Esquire For Plaintiffs John F. Yaninek, Esquire For Defendant McNaughton Company, P.C. Rolf E. Kroll, Esquire :saa -11-