How To Correct The Wrong Name of a Party As Listed in a Writ of Summons

 In the case of Surefire Dividend Capture, L.P. v. The PNC Fin. Serv. Group, Inc., No. 1222 WDA 2023 (Pa. Super. March 10, 2025 Olson, J., Murray, J., and Bender, P.J.E.) (Op. by Olson, J.), the Superior Court vacated a trial court’s Order permitting an amendment to a Writ of Summons to change the name of the Defendant. The court concluded that, Pa. R.C.P. 1033, by its expressed terms, applied only to pleadings and a Writ of Summons was not a pleading under Pennsylvania Rules of Civil Procedure 1017.

According to the Opinion, the Plaintiffs began a lawsuit against certain Defendants. Thereafter, the Plaintiffs filed a Motion to Amend pursuant to Pa. R.C.P. 1033 to amend their Writ of Summons to correct the name of one of the Defendants.

Rule 1033(a) provides, in pertinent part, that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of the party, or otherwise amend the pleading.”

In this case, the court emphasized that the Plaintiffs had not yet filed a Complaint.

The Defendants opposed the motion claiming that the rule did not allow a party to amend a Writ of Summons and thereby add an entirely new party as a Defendant.

The Superior Court ruled the pertinent Pennsylvania Rules of Civil Procedure and concluded that a Writ of Summons is not a pleading.

The court also noted that Rule 1033 was amended in 2014 such that it no longer allowed, and could no longer be construed to permit, the correction of the name of a party in a Writ of Summons.

The Superior Court noted that the Plaintiff’s objective could be accomplished under Pa. R.C.P. 229 by discontinuing the current action and beginning a new lawsuit. The court also noted that, under Pa. R.C.P. 1033, the Plaintiff could amend the caption of a later pleading by agreement of the party or by leave of court. It was also noted that the Plaintiff could, under Pa. R.C.P. 2232, seek leaving of court for an Order to join a Defendant.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (March 25, 2025).

Source of image:  Photo by Poppy Thomas Hill on www.pexels.com.

CORRECTED LINK: Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

 

Here is the corrected LINK for the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), which was highlighted here on Tort Talk yesterday.  The case involved the Court's allowance of an amendment to a Complaint at trial to add claims of recklessness and punitive damages.

Sorry for any confusion that may have been caused.

Trial Court Upholds Right of Plaintiff To Amend Complaint At Trial To Add Claims of Recklessness and Punitive Damages

In the case of Vanston v. Green Ridge Health Care Group, LLC, No. 2019-CV-6227 (C.P. Lacka. Co. July 7, 2023 Munley, Julia, J.), the court denied a Defendant’s Motion for an Amendment of an Order for the purpose of seeking an interlocutory appeal.  This request was made relative to the trial court’s underlying Order that had allowed an amendment to the Plaintiff’s Complaint at a trial of a negligence case involving a nursing home to add a claim of recklessness and a claim for punitive damages after the completion of the testimony of certain Defendants and even though the statute of limitations had previously expired.

In this regard, Judge Munley found that there were sufficient facts pled in the original Complaint such that the court rejected the Defendant’s argument that the claims of recklessness and punitive damages were barred by the statute of limitations.

In her decision, Judge Munley cited to previous decisions by her colleague on the Lackawanna County Court of Common Pleas, Judge Terrence R. Nealon, who had previously ruled that amendments to a Complaint are permitted after the running of the statute of limitations so long as no new causes of action are pled.

Judge Julia Munley
Lackawanna County

In this regard, Judge Munley noted that recklessness is considered an aggravated form of negligence and not a new cause of action. She also noted that, under Pennsylvania law, a request for punitive damages does not constitute a cause of action in and of itself. Rather, a request for punitive damages is merely incidental to an underlying cause of action.

Accordingly, Judge Munley ruled that an amendment to a Complaint to add a claim for punitive damages after the statute of limitations has run is permissible where the main operative facts to support such a claim have been previously alleged in the original Complaint.

Judge Munley noted that a decision was further supported by the fact that the Plaintiffs alleged facts indicative of reckless conduct in the original Complaint.  The Court pointed to those cases in which it has been held that recklessness can be pled in any case whatsoever, regardless of the facts pled.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney Jamie Anzalone and Attorney Kelly Ciravolo of Anzalone Law Offices in Wilkes-Barre, Pennsylvania for bringing this case to my attention.

Amendment To Add New Claim To Med Mal Case Not Allowed After Statute of Limitations Had Expired

In the case of Kersey v. Pisano, No. 798 EDA 2022 (Pa. Super. March 7, 2023 Sullivan, J., Panella, P.J., Bender, P.J.E.) (Op. by Sullivan, J.)[Non-Precedential], the court affirmed in part and reversed in part relative to post-trial motions filed in a medical malpractice case after a verdict was entered in favor of a Plaintiff.

In this case, the Pennsylvania Superior Court found that, where the Plaintiff’s Complaint made allegations solely about prostate cancer, it was an error by the trial court to allow an amendment of the Complaint so as to permit evidence to be presented at trial on a claim for liver cancer, where that claim was only asserted after the two (2) year statute of limitations had run.

The court reaffirmed the general rule that amendments to a Complaint to add new causes of action after the statute of limitations is not permitted.

The court additionally noted that, where an expert report includes a new cause of action on behalf of a Plaintiff, the trial court may not permit the Plaintiff to introduce that opinion after the applicable statute of limitations has run.

The court found that there was no possible reading of the Complaint that could support a claim that the allegations of liver cancer were contained therein so as to allow the desired amendment or claims to proceed.

In this matter, because the trial court utilized a special verdict questionnaire that allowed the jury to reach separate verdicts for the two (2) types of cancer, only the jury verdict relative to the claim of medical malpractice related to the liver cancer would be reversed.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

Federal Court Allows Amendment To Complaint To Add Punitive Damages Claims in Trucking Accident Case

In the case of Stelzer v. Stewart Logistics, Inc., No. 1:21-CV-02097 (M.D. Pa. March 10, 2023 Kane, J.), the court granted a Plaintiff’s Motion to Amend under F.R.C.P. 15(a) in a trucking accident case to allow the Plaintiff to add a claim for punitive damages after discovery was found to have supported such a claim.

The court held that the punitive damages claim was neither late nor unduly prejudicial. In this regard, the court stated that the fact that punitive damages are not covered by insurance is not considered to be prejudicial as that term is defined in this context.

The court otherwise found that the Plaintiff’s requested amended allegations of both a subjective appreciation of the risk and an alleged conscious disregard of the risk of danger to others were plausible under the amended facts. More specifically, the Plaintiff was alleging that the Defendant driver allegedly concealed a medical condition, falsified federally required time logs, and ignored lane markings on the road.  As such, allowing the amendment was deemed not to be a futile effort on the part of the Plaintiff.

The court additionally noted that the Defendant driver’s employer could be vicariously liable for punitive damages under the case presented.

The court also ruled that the claim for direct punitive damages against the employer were also plausible on the negligent hiring claim.

As such, the Plaintiff was granted leave to amend his Complaint.    

Anyone wishing to review a copy of this decision may click this LINK.  The court's companion Order can be viewed HERE.


I send thanks to Attorney James M. Beck of the Philadelphia law office of the Reed Smith law firm.

Source of image:  Photo by Brian Stalter on www.unsplash.com.

Defendant's Request to Amend Pleadings to Add Crossclaims on the Eve of Trial Denied

In the case of Reynolds Iron Works, Inc. v. Lundy Constr., Co. Inc., No. 20-00, 730 (C.P. Lyc. Co. Jan. 25, 2023 Carlucci, J.), the court denied a Defendant’s Motion for Leave to file new crossclaims after finding that the Defendant had waited too long to do so in this case, which was already scheduled for trial.

The court noted that, granting the Defendant’s motion would likely lead to prejudice to the other parties under circumstances in which a continuance also might not serve to remedy that prejudice.

This matter arose out of a civil litigation involving a contractor dispute regarding the money allegedly owed on a subcontract.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Feb. 28, 2023).

Court Denies Plaintiff Right to File Amended Complaint to Correct Name of the Defendant Driver After Plaintiff Waited Too Long To Do So

In the case of Myrick v. Hall, April Term 2020, No. 00794 (C.P. Phila. Co. Aug. 15, 2022 Shreeves-Johns, J.), the court affirmed the trial court’s Order granting a Motion to Dismiss and denying a Plaintiff’s Motion for Leave to file an Amended Complaint to correct the name of the Defendant driver. in the Complaint.

In its decision, the court focused upon the fact that, although the Plaintiff knew that they had sued the wrong party in the Complaint’s caption, the Plaintiff did not seek to cure this defect until after the applicable statute of limitations had expired.

The court pointed to Supreme Court precedent holding that, where the statute of limitations has run, amendments will not be allowed to introduce a new cause of action or to bring in a new party.

The court emphasized that, based upon the Plaintiff’s own admission, the Plaintiff was aware that an adult male was driving the vehicle involved in the subject accident, but nevertheless chose to name a female as the Defendant driver in the Complaint. It turned out that the husband of the named Defendant driver was the actual driver during the course of the accident.

The court noted that the Plaintiff did not act with haste and took over six (6) months to attempt to cure the defects in their pleading after having become aware of the actual driver’s identity.

As such, in the Rule 1925 Opinion, the trial court asserted that it did not abuse its discretion by granting the named Defendant driver’s motion to dismiss and denying the Plaintiff’s request for leave to amend the Complaint to identify the correct driver.

Anyone wishing to review a copy of this decision may click this LINK.

Source of Image:  Photo by Varvara Grabova on www.unsplash.com.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 22, 2022).

 

Court Reviews Standard of Review For Motion to Amend Complaint in Federal Court

In the case of Moravia Motorcycle, Inc. v. Allstate Ins. Co., No.2:21-cv-01274-PLD (W.D. Pa. Oct. 19, 2022 Dodge, Mag. J.), the court addressed a Plaintiff’s Motion for Leave to Amend Complaint and join an additional party which was opposed by the Defendant carrier in this breach of contract and bad faith claim. The court denied the Motion.

According to the Opinion, this case involved a claim by the Plaintiffs against the Defendant carrier in which they sought benefits under an insurance policy for damage to their motorhome.

The court noted that the Plaintiff was relying upon F.R.C.P. 15(a)(2) in seeking to amend their Complaint. Under that Rule, it is provided that, when a party moves to amend a pleading, “the court should freely give leave when justice so requires.”

However, the magistrate judge in this case noted that the Third Circuit Court of Appeals has held that a party seeking to amend after the deadline in a Case Management Order is required to meet the good cause standard of F.R.C.P. 16(b)(4), and not the more liberal standard of Rule 15(a)(2).

In reviewing the record before it, the court noted that there was evidence that the Plaintiff was aware of the possible need to join in another party before the deadline to amend actually expired. In the end, the court found that the Plaintiff had not met the good cause standard.

The court also went on to state that, even if the Plaintiff had met the good cause standard, because their motion sought to add a non-diverse party, the Plaintiffs would have been required to meet other factors in order to be allowed to amend to join a non-diverse party.

The court noted that some of the factors which may be considered by a court when faced with a Motion to Add a Non-Diverse Party would include the extent to which the purpose of the amendment is to defeat federal jurisdiction, whether the Plaintiff had been dilatory in requesting the amendment, whether the Plaintiff would be significantly injured if the amendment is not allowed, and other equitable factors. The court in this matter noted that it did not appear that these particular factors had yet been adopted in the Third Circuit but had been utilized in other federal circuits.

Nevertheless, after reviewing the factors as applied in this case, the court ruled that the factors weighed against allowing the joinder of the non-diverse Defendant in any event.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Joseph Hudock of the Pittsburgh office law firm of Summers, McDonnell, Hudock, Guthrie & Rauch, P.C. for bringing this case to my attention.

Court Grants Trucking Defendant's Motion to Amend its Answer and New Matter to Change Denials to Admissions

In the case of Bellersen v. Gill, No. 19-CV-2686 (C.P. Lacka. Co. Nov. 1, 2021 Nealon, J.), Judge Terrence R. Nealon addressed a motion filed by a trucking Defendant in a motor vehicle accident litigation under which the trucking Defendant sought to amend its Answer and New Matter to change previous denials in its original Answer and New Matter relative to the facts and the cause of the accident.

The trucking Defendant sought to admit factual allegations of the accident and to further admit that the Defendant driver’s failure to use due care while driving his vehicle on Interstate 380 caused him to rear-end the vehicle in front of him which, in turn, caused that vehicle to rear-end the vehicle that the Plaintiff was driving, and further caused the front of the Plaintiff’s vehicle to hit the vehicle in front of the Plaintiff.

It was noted in the Opinion that, while this proposed amendment was offered up two (2) years after the original Answer and New Matter was filed, no trial date was scheduled in the case and discovery was ongoing.

The Defendant offered up a proposed Order that not only granted his motion but also contained language under which the Defendant driver seeking the court to rule that such admissions shall not be used as any admission of any type of conduct which could serve as the basis for the imposition of punitive damages.

Judge Terrence R. Nealon
Lackawanna County

In his Opinion, Judge Nealon reviewed the rules regarding pleading, which he confirmed are to be liberally applied. The court also noted that there was no time limit under Pa.R.C.P. 1033 for the filing of any request for an amendment to a pleading.

The court granted the Defendant’s Motion and allowed the amendment but held any decision on the impact of any such amendment on any claim for punitive damages for a later day.

The court noted that the Defendant’s request that the Plaintiff be prevented from making any evidentiary use of the allowed admissions in support of the Plaintiff’s punitive damages claims was not an appropriate consideration relative to the request for leave of court to amend a pleading under Rule 1033. Rather, the court noted that the preclusion of evidence at trial is more properly a subject for a Motion In Limine to be decided by any assigned trial judge.

The court emphasized that any admission that the trucking Defendant would put in his Answer and New Matter would be considered a judicial admission. However, any legal conclusions in the Plaintiff’s Complaint, such as allegations of negligence and/or recklessness, would not qualify as judicial admissions under Pennsylvania law.

Anyone wishing to review a copy of this interesting Opinion by Judge Nealon in the case of Bellersen may click this LINK.

Source of top image: Photo by Mike from Pexels.com.

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Effort To Amend Complaint To Join Defendant Driver After Expiration of Statute of Limitations Denied

In the case of Fick v. Barbon, 12 Berks 280 (C.P. Berks Co. Feb. 14, 2020), the court denied a Plaintiff’s Motion for Leave to File an Amended Complaint to name a new Defendant after the expiration of the statute of limitations. 

According to the Opinion, the Plaintiff named the owner of the vehicle in the Complaint but not the driver of the vehicle involved in the subject accident.

The record before the court confirmed that personal information was exchanged by the parties at the scene of the accident. It was also noted that a police officer was present at the accident. The record therefore convinced the court that the Plaintiff knew or should have known the identity of the driver prior to the expiration of the statute of limitations.

In denying the Plaintiff’s motion for leave of court to join the driver to the matter, the court additionally took into consideration the potential prejudice to the Defendant driver in allowing him to be named to a lawsuit after the expiration of the statute of limitations where that driver was now enrolled in college and where the fact that the suit was filed only against the grandparent of the driver supported a reasonable expectation of the driver that he would not be sued. 

A copy of the trial court's decision could not be located online, but here is a LINK to a copy of the Non-precedential Opinion by the Pennsylvania Superior Court in the same case.  The Superior Court's decision lays out the law in great detail.  Too bad they did not mark such a thorough Opinion as precedential.  But you can still cite to it anyway under the revised Rules.

Source: "Court Summaries” by Timothy L. Clawges of the Pennsylvania Bar News (Nov. 9, 2020).

Amendment Allowed Where Simply to Correct Name of Party (And Not To Add a New Party)

In the case of Thom v. CDM Auto Sales, 2019 Pa. Super. 315 (Pa. Super. Oct. 18, 2019 Olson, J., Strassburger, J., Stabile, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court ruled that the trial court abused its discretion in denying the Plaintiff’s Motion to Correct the Name of the Defendant Auto Sales Company in the caption and in the body of default judgment paperwork.

The court noted that the Plaintiff had failed to include “LLC” in the name of the Defendant in the pleadings and in the default judgment paperwork. The court ruled that there was no question that the Plaintiff had sued the right business entity but had just failed to use the proper LLC designation.

The appellate court additionally found that the Defendants did not claim or demonstrate any prejudice or surprise. It was additionally noted that the Defendants had participated in the proceedings by filing an Answer as well as a Petition to Open the Default Judgment.

The Superior Court also rejected the trial court’s ruling that Rule 1033 requests for amendments did not apply to judgments. Rather, the court noted that the rule did apply to allow for amendments of the entry of judgments where the amendment is made to simply correct the name of a party (and not to add a new party) if the amendment was made within 90 days of the expiration of the applicable statute of limitations.

Anyone wishing to review a copy of this decision may click this LINK.

Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Nov. 5, 2019).

Motion To Amend Allowed in Favor of Allegations of Recklessness and Punitive Damages in MVA Case

As Tort Talkers may recall, there are two (2) lines of cases on whether allegations of recklessness and/or punitive damages should be allowed in a motor vehicle accident cases not involving intoxicated drivers.

One line of cases hold fast to the rule set forth in Pa. R.C.P. 1019 that there must be supporting facts pled for such claims to stand.

The other line of cases more liberally allow for claims of recklessness to proceed in this context as a general allegation that asserts the tortfeasor's state of mind at the time of the accident.

In those cases in which the Preliminary Objections against allegations of recklessness and/or punitive damages are sustained, it is typically provided by the court that the plaintiff may revisit the issue by way of a Motion to Amend should facts be discovered during the course of discovery to support such claims.

In the case of Novajosky v. North Penn Distributors, Inc., No. 17-CV-94 (C.P. Lacka. Co. Oct. 18, 2019 Nealon, J.), the issue of adding claims for punitive damages during the pendency of a case by way of a Motion to Amend the Complaint was considered.

The case of Novajosky involved a Plaintiff who was allegedly injured in an accident when a tractor and a lowboy unloading an excavator allegedly blocked the only clear lane of travel on a roadway and forced the Plaintiff into a snow and ice covered lane, which allegedly caused the Plaintiff to then lose control and crash his vehicle.

The Plaintiff initially filed suit against the commercial driver and his employer. The Plaintiff alleged that those Defendants negligently blocked the roadway when they knew that their actions would force other motorists to drive into the unplowed snow and icy lane of travel. The Plaintiff also asserted that the Defendant did not place, or even possess, emergency reflective triangles, fuses, or other warning devices required by federal and state law.

After the Plaintiff secured evidence in support of these allegations during the course of discovery, including expert reports in which the experts concluded that the Defendant acted recklessly and with conscious disregard for safety of others, the Plaintiff filed a Motion to Amend his Complaint to include a claim for punitive damages.

Judge Nealon noted that the general rule in Pennsylvania was that leave to amend a Complaint should be liberally granted unless the amendment seeks to assert a new cause of action after the statute of limitations has expired, or where the amendment will result in prejudice to an adverse party.

Given that a request for punitive damages does not constitute an independent cause of action and is merely incidental to an underlying claim for damages, and given that the court found that the Plaintiff’s requested amendment in this matter would merely amplify his earlier allegations without asserting a new cause of action beyond the statute of limitations, the amendment was allowed.

The court also found that the commercial Defendants did not identify any resulting prejudice which would support the denial of the Plaintiff’s Motion to Amend.

As such, the Motion to Amend the Complaint to include a claim for punitive damages was granted.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Brian Walsh of the Scranton, PA law firm of Blake & Walsh, LLC for bringing this case to my attention.

Punitive Damages Claim Allowed to Be Added at Time of Trial

The case of Samuda v. Moreland, No. 8058 - CV - 2016  (C.P. Monroe Co. May 7, 2019 Zulick, J.) is an example of a case in which a trial court allowed a Plaintiff to amend a Complaint at the of trial to add a claim for punitive damages.

According to the Briefs filed in the matter, the case arose out of motor vehicle accident between a Martz Bus and the Plaintiff's vehicle.  Part of the claims pursued by the Plaintiff included claims of recklessness on the part of the Martz Bus Company for allowing its driver to continue to drive its buses despite prior issues with his driving.

In support of her position, the Plaintiff asserted that the addition of punitive damages to the ad damnum clause did not amount to an effort to state a new cause of action beyond the statute of limitations, but rather another element of damages to a timely asserted claim against the Defendants.

Anyone wishing to review the Court's Order (no Opinion) may click this LINK.

I send thanks to Attorney Michael J. Foley of the Foley Law Firm in Scranton, PA for bringing this case to my attention.

Motion To Amend Complaint to Correct Allegation on Where Incident Occurred Denied Where Statute of Limitations Has Expired

In the Lehigh County case of Hamsher v. Shook, 58 Leh. L.J. 139 (C.P. Leh. Co. Aug. 2, 2018 Johnson, J.), the court ruled, in a slip and fall case, that a Motion to Amend a Complaint To Reflect Correct Address of Subject Accident after the statute of limitations had expired in order to allege a different place of the incident was denied as such an amendment was deemed not to cure a merely technical defect, but was actually found to constitute a different occurrence.

More specifically, the court found that an amendment that would change the location of the incident from one where the Defendant owed no duty to a location where the Defendant did owe a duty, changes the occurrence pled, which is not a permissible amendment once the statute of limitations has expired.

In conjunction with denying the Plaintiff's Motion to Amend, the court also granted the Defendant's Motion for Summary Judgment.

Anyone wishing to review this Opinion may click this LINK.