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HomeMy WebLinkAbout2006-9 Civil JAMES KEVIN HOLT AND ANDREA HOLT, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRANDON N. THOMAS a/kla BRADLEY THOMAS AND CATHERINE: THOMAS, DEFENDANTS 06-0009 CIVIL TERM IN RE: MOTION OF DEFENDANTS TO AMEND THE COMPLAINT BEFORE BAYLEY. J. AND GUIDO. J. OPINION AND ORDER OF COURT Bayley, J., September 15, 2006:-- On January 3, 2006, plaintiffs, James Kevin Holt and Andrea Holt, filed a praecipe for a writ of summons against defendants, Brandon N. Thomas a/kla Bradley Thomas and Catherine Thomas. The Sheriff filed a return attesting that on January 6, 2006, "the within writ of summons was served. . . by handing [a copy of the writ] to BRADLEY THOMAS, SON," at "6 Edgewood Drive, Mechanicsburg, pa."1 Plaintiffs filed a complaint on April 4, 2006. The suit arises out of an automobile accident in Harrisburg, Pennsylvania on January 15, 2004. Plaintiffs allege in their complaint that (1) defendant, Brandon N. Thomas, a/kla Bradley Thomas, was operating a motor vehicle involved in the accident, (2) "Defendant Brandon N. Thomas a/kla Bradley Thomas was under the age of 18, and therefore, a minor," and (3) "Defendant Brandon N. Thomas a/kla Bradley Thomas, a minor at the time, was using the vehicle owned by 1 The Sheriff's return also attests that defendant, Catherine Thomas, was personally 06-0009 CIVIL TERM Defendant Catherine Thomas with the permission of Defendant Catherine Thomas." On June 7, 2006, plaintiffs filed a motion to amend the complaint "by substituting 'Bradley Thomas' for 'Brandon Thomas a/kla Bradley Thomas' in the caption and throughout the body of the Complaint." The issue was briefed and argued on September 6, 2006. The two year statute of limitations expired on January 15, 2006.2 An amendment to the complaint, after the statute of limitations has run, cannot bring in a new and distinct party to the action. See Saracina v. Cotoia, 417 Pa. 80 (1965). In Cianchetti v. Kaylen, 241 Pa. Super. 437 (1976), the Superior Court of Pennsylvania stated: 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 and distinct party." In Saracina, the plaintiff was struck by an automobile driven by Robert Cotoia. Plaintiff's complaint named Robert's father, Anthony Cotoia, as the defendant. After the statute of limitations had run, the plaintiff attempted to amend the complaint to change the name of defendant from Anthony to Robert Cotoia. The Supreme Court concluded that the complaint could not be amended because Robert Cotoia was a new and distinct party. However, the Court stated, quoting Powell v. Sutliff, 410 Pa. 436 (1963), "If the right party was in court as a result of service of process and it was merely his or its designation which was sought to be changed, we would be prone to permit the amendment." served with a copy of the writ at the same time. -2- 06-0009 CIVIL TERM 242 PaC.S. S 5524. -3- 06-0009 CIVIL TERM In Cianchetti, in 1968, plaintiff, was struck by an automobile owned and operated by Henry J. Kaylen. Suit was entered against Harry J. Kaylen, and a sheriff personally served him with the complaint. Harry J. Kaylen died in 1965. After the statute of limitations had run, plaintiff sought to amend the complaint to change the name of the defendant from Harry J. Kaylen to Harry J. Kaylen also known as Henry J. Kaylen. The amendment was denied. The Superior Court of Pennsylvania reversed. The Court stated that, "The issue in the instant case, therefore, is whether the appellants, in fact, sued Henry J. Kaylen, but merely used the erroneous designation of 'Harry J. Kaylen,' or whether the appellants, in fact, sued Harry J. Kaylen." The Court noted that the complaint alleged that defendant, Harry J. Kaylen, is an individual residing at 2147 Chestnut Avenue, Ardmore, that on the day of the accident he operated and owned a Rambler automobile and that he negligently struck plaintiff. The Court concluded that, "Because Harry J. Kaylen died in 1965, the only possible defendant to the instant action was Henry J. Kaylen." Henry J. Kaylen was the sole resident of 2147 Chestnut Avenue, Ardmore, and the right party, Henry J. Kaylen, was served with process by the sheriff. In the case sub judice, (1) the correct name of the defendant, Bradley Thomas, was set forth in the caption and the body of the complaint, (2) he was correctly identified in the complaint as a minor being under the age of 18, who lived at 6 Edgewood Drive, Mechanicsburg, Pa, and who operated the motor vehicle involved in the accident on January 15, 2004, and (3) he, "the son," was personally served with a -4- 06-0009 CIVIL TERM copy of the complaint by the sheriff. Plaintiff may amend the complaint by substituting the name Bradley Thomas in the caption and throughout the complaint for "Brandon Thomas a/kla Bradley Thomas," because Bradley Thomas, who was personally served with a copy of the complaint, was the right person named as defendant under what was partly a wrong designation. ORDER OF COURT AND NOW, this day of September, 2006, the motion of defendants to amend the complaint, IS GRANTED. The amended complaint shall be filed within fifteen (15) days of this date. By the Court, Edgar B. Bayley, J. Christian C. Hugel, Esquire 502 Market Street Lemoyne, PA 17043 For Plaintiffs W. Darren Powell, Esquire 305 Front Street P.O. Box 999 Harrisburg, PA 17108 F or Defendants :sal -5- JAMES KEVIN HOLT AND ANDREA HOLT, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. BRANDON N. THOMAS a/kla BRADLEY THOMAS AND CATHERINE: THOMAS, DEFENDANTS 06-0009 CIVIL TERM IN RE: MOTION OF DEFENDANTS TO AMEND THE COMPLAINT BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this day of September, 2006, the motion of defendants to amend the complaint, IS GRANTED. The amended complaint shall be filed within fifteen (15) days of this date. By the Court, Edgar B. Bayley, J. Christian C. Hugel, Esquire 502 Market Street Lemoyne, PA 17043 For Plaintiffs W. Darren Powell, Esquire 305 Front Street P.O. Box 999 Harrisburg, PA 17108 F or Defendants :sal