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HomeMy WebLinkAbout2005-102 Civil MANUEL RODRIGUEZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. GEORGE J. KOPKO and NO. 2005 - 0102 CIVIL TERM ANN ELIZABETH KOPKO CIVIL ACTION - LAW IN RE: PLAINTIFF'S MOTION TO AMEND WRIT OF SUMMONS AND DEFENDANTS' MOTION FOR SUMMARY mDGMENT BEFORE BAYLEY, P.L AND GUIDO, J. OPINION AND ORDER Currently before this Court are Plaintiff s "Motion to Amend Writ of Summons" and Defendants' "Motion for Summary Judgment". The parties have briefed and argued their respective positions in connection with each motion. For the reasons hereinafter set forth, plaintiffs' motion will be denied. As a result, we will then be required to grant the defendants' motion. We will begin by summarizing the facts and procedural history of this case. On January 23, 2003 the plaintiff was driving a van that was involved in a collision with a car being driven by defendant Ann Elizabeth Kopko. The car was owned jointly by her and her husband George J. Kopko.1 Plaintiff was aware that a woman was driving the car.2 Furthermore, the names and addresses of both vehicle operators were properly 1 See Complaint, paragraph 5. 2 He spoke to the driver at the scene of the accident to see if she was injured and to exchange information. See p. 19 of Plaintiff's deposition attached as Exhibit C to Defendants' "Motion to Summary Judgment". NO. 2005 - 0102 CIVIL TERM listed in the "Notification of Accident Investigation" prepared by the Hampden Township Police Department.3 On January 6, 2005 plaintiff commenced this action by filing a praecipe for writ of summons. 4 The writ named only George J. Kopko as a defendant. It was served upon him on January 11, 2005. On March 17, 2005 defense counsel entered his appearance. On March 22,2005 defendant's counsel filed a "Praecipe for Rule to File Complaint." Plaintiffs counsel filed a complaint on April 6, 2005. The complaint listed both Ann Elizabeth Kopko and George J. Kopko as defendants. It went on to allege that either one or the other of the defendants was operating the car involved in the collision.s On May 2, 2005 defendants filed an answer with new matter which raised the statute of limitations as a defense. 6 On September 29, 2005 plaintiff filed the instant motion seeking leave to amend his writ of summons. Specifically, he sought leave to "correct the name of George J. Kopko to Ann Elizabeth Kopko".7 The law regarding this issue is clear and well settled. The general rule is that an amendment will not be allowed after the statute of limitations has run if the effect would be to add a new and distinct party. Saracina v. Cotoia,417 Pa. 80,208 A.2d 764 (1965). In the instant case, there is no question that George J. Kopko and Ann Elizabeth Kopko are separate and distinct parties. However, as with most rules, there are exceptions. The statute of limitations may be tolled if "a defendant or his agent actively misleads the plaintiff as to the identity of the proper defendants." Hubert v. Greenwald, 743 A.2d 977,981 (Pa.Super 1999). 3 See Exhibit B to Defendants' Answer to Plaintiff's Motion to Amend. 4 See Praecipe for Writ of Summons. 5 See Complaint, paragraph 5. 6 See Defendants' Answer with New Matter, paragraph 32. 7 See Plaintiff's "Motion to Amend Writ of Summons". 2 NO. 2005 - 0102 CIVIL TERM Plaintiff contends that the statute of limitations had been tolled because of the "fraud or intentional concealment on the part of the Defendants' insurer as to the identity of the driver as evidenced by Exhibit B."s Exhibit B referred to in plaintiffs motion is a letter from defendants' insurer to plaintiff dated February 13, 2003. It contained the following caption. YOUR CLIENT: OUR INSURED: OUR CLAIM #: DATE OF LOSS: Manual Rodriquez George J. Kopko 5837 D 04241901232003 01 01-23-2003 In the late summer or early fall of 2003 plaintiff s attorney advised the defendants' insurance carrier of his representation.9 That correspondence, as well as all other correspondence between the carrier and plaintiff s counsel referred to the insured as "George J. Kopko" .10 Plaintiff argues that the correspondence between his counsel and the insurer listing "George J. Kopko" as the "insured" was sufficient to toll the statute. We disagree. "In order for fraudulent concealment to toll the statute of limitations, the defendant must have committed some affirmative independent act of concealment upon which the plaintiffs justifiably relied." Kingston Coal Company v . Felton Mining Company, 456 Pa.Super 270,284, 690 A.2d 284,291 (1997). The instant case is similar to Montanya v. McGonegal, 757 A.2d 947 (Pa.Super 2000). In that case the Superior Court held that "(r)elying on a heading, which was used merely to identify the policylclaim at issue, was not reasonable and does not constitute the type of fraudlconcealment which permits the tolling of the statute oflimitations." 757 A.2d at 8 Plaintiff's "Motion to Amend Writ of Summons" paragraph 13. 9 See Exhibits to Plaintiff's "Motion to Amend Writ of Summons". 1 0 See Exhibits to Plaintiff's "Motion to Amend Writ of Summons". 3 NO. 2005 - 0102 CIVIL TERM 951. The insurance company's "mere silence or non-disclosure" is not sufficient to toll the statute. Id at 952. The plaintiff has an affirmative "duty to ascertain" the identify of the defendant. Id That is particularly true in the instant case where the "insured" was listed as a man and the plaintiff was well aware that the proper defendant was a woman. Furthermore, the name of the appropriate defendant was listed in the police report. Therefore, we must deny the plaintiffs "Motion to Amend Writ of Summons." Plaintiff concedes that if the statute of limitations is not tolled, his action against Ann Elizabeth Kopko is time barred. He further concedes that he has no valid cause of action against George J. Kopko. Therefore, defendants' "Motion for Summary Judgment" will be granted. ORDER OF COURT AND NOW, this day of NOVEMBER, 2006, for the reasons set forth in the attached opinion Plaintiff s Motion to Amend Writ of Summons is DENIED and Defendants' Motion for Summary Judgment is GRANTED. By the Court, Isl Edward E. Guido Edward E. Guido, J. 4