Thom, S. v. CDM Auto Sales ( 2019 )

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2019 PA Super 315SOFIA N. THOM IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
CDM AUTO SALES AND JENNIFER
SCHAEFFER
Appellees No. 119 EDA 2019
Appeal from the Order Entered December 14, 2018
In the Court of Common Pleas of Northampton County
Civil Division at No.: C-48-CV-2017-7387
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
OPINION BY STABILE, J.: FILED OCTOBER 18, 2019
Appellant Sofia N. Thom appeals from the December 14, 2018 order of
the Court of Common Pleas of Northampton County (“trial court”), 1 which
denied her self-styed “Motion for Leave to Amend Name of Defendant In
Caption of Case and Underlying Default Judgment” (the “Motion”). Upon
review, we reverse.
The facts and procedural history of this case are uncontested. Briefly,
following Appellant’s February 14, 2017, purchase of a used vehicle from
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant purports to appeal from the trial court’s January 2, 2019 order
denying her motion for reconsideration. An appeal, however, does not lie from
the denial of a motion for reconsideration, but from the underlying judgment.
See Erie Ins. Exch. v. Larrimore, 987 A.2d 732, 743 (Pa. Super. 2009).
We have amended the caption accordingly.
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Appellees, she filed on September 14, 2017, a civil complaint against them
alleging fraud, a violation of the Unfair Trade Practices and Consumer
Protection Law (“UTPCPL”), negligence, negligent misrepresentation, breach
of implied warranty of fitness for a particular purpose, and breach of express
and implied warranty of merchantability.2 See Complaint, 9/14/17, at ¶¶ 17-
51. On October 10, 2017, Appellant issued a “Notice of Praecipe for Entry of
Judgment of Default for Failure to Plead” (the “Notice”) to Appellees, advising
them that they had ten days from the date of the Notice to file an answer in
this case to avoid the entry of a default judgment against them. On October
30, 2017, Appellant filed a praecipe for judgment for $8,000.00 against
Appellees.
On November 6, 2017, Attorney Keene Jabbour entered his appearance
on behalf of Appellees. On the same day, Attorney Jabbour filed an answer
to the September 14, 2017 complaint, seeking the dismissal thereof. In the
answer, Appellees asserted that the name of Appellee CDM Auto Sales was
incorrect in the complaint and should have been “CDM Auto Sales, LLC.” On
April 13, 2018, more than five months later, Appellees filed a “Petition to Open
Default Judgment.” Therein, Appellees once again asserted that it was CDM
Auto Sales, LLC, and not CDM Auto Sales, that sold the vehicle in question to
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2 The statute of limitations period for UTPCPL claims is six years, contract
claims four years and tort claims two years. See 42 Pa.C.S.A. §§ 5527(b),
5525, and 5524, respectively.
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Appellant. The trial court, after issuing a rule to show cause, denied the
petition to open default judgment on September 18, 2018.
On September 28, 2018, Appellees filed a motion for reconsideration of
the trial court’s September 18, 2018 order denying their petition to open
default judgment. The trial court denied reconsideration on October 2, 2018.
On November 21, 2018, more than one year after the entry of the underlying
default judgment and more than two months after the trial court’s denial of
the petition to open judgment, Appellant filed the instant Motion, seeking to
amend Appellee CDM Auto Sales’ name in the caption and in the underlying
judgment. In particular, Appellant sought to change the name of Appellee
CDM Auto Sales to “CDM Auto Sales, LLC.” In support, Appellant alleged that
on November 15, 2018, Appellees’ counsel answered her February 22, 2018
interrogatories stating that CDM Auto Sales, LLC was not a party to this action.
On December 14, 2018, following a hearing, the trial court issued an order
and opinion, denying the Motion, concluding that Pa.R.C.P. No. 1033 applied
only to amendments of pleadings and not judgments. On December 21, 2018,
Appellant moved for reconsideration, which the trial court denied on January
2, 2019. Appellant timely appealed on January 7, 2019. The trial court
directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained
of on appeal. Appellant complied, raising several assertions of error. In
response, the trial court issued a Pa.R.A.P. 1925(a) statement, wherein it
adopted its December 14, 2018 opinion.
On appeal, Appellant raises a single issue for our review:
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[I.] Did the trial court err by not permitting amendment of the
caption and underlying judgment to reflect the corporate
designation of the entity defendant when, in fact, no new party
was added to the case and where the entity defendant led
[Appellant] to believe its name was something else?
Appellant’s Brief at 5.
It is settled that the trial court “enjoys ‘broad discretion’ to grant or deny
a petition to amend” pleadings. The Brickman Grp., Ltd v. CGU Ins. Co.,
865 A.2d 918, 9267 (Pa. Super. 2004) (citation omitted); see General Mach.
Corp. v. Feldman, 507 A.2d 831, 834 (Pa. Super. 1986) (noting that Rule
1033 is completely subject to the discretion of the trial court). We therefore
use an abuse of discretion standard in reviewing a trial court’s order granting
or denying a petition to amend. Id.Rule 1033 provides:
(a) 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 a party, or otherwise
amend the pleading.[3] The amended pleading may aver
transactions or occurrences which have happened before or after
the filing of the original pleading, even though they give rise to a
new cause of action or defense. An amendment may be made to
conform the pleading to the evidence offered or admitted.
(b) An amendment correcting the name of a party against whom
a claim has been asserted in the original pleading relates back to
the date of the commencement of the action if, within 90 days
after the period provided by law for commencing the
action, the party received notice of the institution of the action
such that it will not be prejudiced in maintaining a defense on the
merits and the party knew or should have known that the action
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3 Pleadings in a civil action are limited to: (1) a complaint and an answer
thereto; (2) a reply if the answer contains new matter, a counterclaim or a
cross-claim; (3) a counter-reply if the reply to a counterclaim or cross-claim
contains new matter; and (4) a preliminary objection and a response thereto.
See Pa.R.C.P. No. 1017(a)(1).
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would have been brought against the party but for a mistake
concerning the identity of the proper party.
Pa.R.C.P. No. 1033(a) and (b) (emphasis added). It is “beyond peradventure
that leave to amend pleadings has traditionally been liberally granted in this
jurisdiction.” Biglan v. Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984)
(citations omitted); see Pa.R.C.P. No. 126. As can be seen from the clear
language of Rule 1033, no limit is imposed on the time when an amendment
may be made. Thus, “[p]leadings may be amended at the discretion of the
trial court after pleadings are closed, while a motion for judgment on the
pleadings is pending, at trial, after judgment, or after an award has been
made and an appeal taken therefrom.”4 Id. at 1025-26 (emphasis added)
(citing Sheppard v. First Pennsylvania Banking & Tr. Co., 184 A.2d 309,
311 (Pa. Super. 1962)); see also Keller V. R.C. Keller Motor Co., 124 A.2d
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4 Because Rule 1033 expressly permits amendment of pleadings “at any time,”
the 30-day jurisdictional limit under Section 5505 is inapplicable. See 42
Pa.C.S.A. § 5505 (“Except as otherwise provided or prescribed by law,
a court upon notice to the parties may modify or rescind any order within 30
days after its entry, notwithstanding the prior termination of any term of court,
if no appeal from such order has been taken or allowed.”) (emphasis added).
Section 5505 permits a party to amend a judgment even after the
expiration of the 30-day period so long as the amendment is otherwise
provided or prescribed by law, such as in Rule 1033. Cf. Zimmerman v.
Briggans, 5 Watts 186 (Pa. 1836) (explaining that a mistake in the entry on
a judgment may be amended even after error brought, provided such
amendment is not to the prejudice of a subsequent encumbrancer).
Differently put, the 30-day period for amendments provided for in Section
5505 becomes immaterial where amendments beyond that period are
permitted by law. See Lohmiller v. Weidenbaugh, 469 A.2d 578, 580 n.4
(Pa. 1983) (“Rules of Civil Procedure promulgated by this court have same
force and effect as statutes passed by the legislature.”) (citing Dombroski v.
City of Philadelphia, 245 A.2d 238 (Pa. 1968)); accord Maurice A.
Nernberg & Assocs. v. Coyne, 920 A.2d 967, 971 (Pa. Cmwlth. Ct. 2007).
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105, 106 (Pa. 1956) (noting that pleadings may be amended at any stage of
the proceedings); Trabue v. Walsh, 177 A. 815, 816 (Pa. 1935) (“Pleadings
may be amended at any state of the case.”).
As we explained in Biglan, “[t]he fundamental purpose of this rule is to
prevent cases from turning on purely technical defects. . . .
[H]ypertechnicality and formalism in pleading are contrary to modern practice
of allowing free amendment in order to promote resolution of cases on their
merits.” Biglan, 479 A.2d at 1026 (citations omitted). Nonetheless, a trial
court may deny amendment of pleadings if there is resulting prejudice or
surprise to the adverse party. Id. “[P]rejudice, in turn, must be more than
a mere detriment to the other party because any amendment requested
certainly will be designed to strengthen the legal position of the amending
party and correspondingly weaken the position of the adverse party.”
MacGregor v. Madiq Inc., 576 A.2d 1123, 1126 (Pa. Super. 1990) (citation
omitted). In Capobianchi v. BIC Corp., 666 A.2d 344 (Pa. Super. 1995),
we noted that prejudice sufficient to deny amendment of the pleadings “must
be more than a mere detriment to the other party[.]” Id. at 346. The “fact
that the adverse party has expended time and effort in preparing to try a case
against the amending party is not such prejudice as to justify denying the
amending party leave to amend[.]” Id. (citation omitted). Indeed, “[d]enial
of a petition to amend, based on nothing more than unreasonable delay, is an
abuse of discretion.” Id. at 347 (citation omitted). However, under the
current language of Rule 1033, pleadings may not be amended to correct a
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party’s name if more than 90 days have passed since the expiration of the
statute of limitations.5 See Pa.R.C.P. No. 1033(b).
In Powell v. Sutliff, 189 A.2d 864 (Pa. 1963), the plaintiff’s original
complaint designated the defendant as the “Pleasant Hills Realty Company, a
corporation.” Powell, 189 A.2d at 865. After the statute of limitations had
run,6 the plaintiff attempted to change the description of the business entity
from a corporation to a partnership. Id. In reversing the trial court, our
Supreme Court held that a motion to amend a complaint is permissible so long
as “the proposed amendment merely seeks to correct the designation of [a]
business entity” and would not impose liability on a new and distinct party.
Id. The proper test, as applied by the Court, is “whether the right party was
sued but under a wrong designation—in which event the amendment was
permissible—or whether a wrong party was sued and the amendment was
designed to substitute another and distinct party—in which event the
amendment was not permissible.” Id. (citing Gozdonovic v. Pleasant Hills
Realty Co., 53 A.2d 73 (Pa. 1943)).
Here, based upon our review of the record and the foregoing legal
authorities, we are constrained to conclude that the trial court abused its
discretion in denying the Motion by which Appellant sought to amend her
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5 As mentioned above, the shortest applicable statute of limitations for the
causes of action asserted by Appellant is two years, thus making the Motion
timely under Rule 1033(b). See 42 Pa.C.S.A. § 5524.
6 Rule 1033(b) was not in effect at the time.
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pleadings to change the name of Appellee CDM Auto Sales to CDM Auto Sales,
LLC. As detailed earlier, Appellant filed the Motion within two years of her
February 14, 2017 purchase of the used vehicle at the heart of this dispute.
Consistent with Powell, Appellant merely sought the proposed amendment
to correct the designation of a business entity—i.e., CDM Auto Sales—and not
to impose liability on a new and distinct party. Thus, no doubt exists that
Appellant sued the right party (CDM Auto Sales) but failed to use the proper
designation (LLC). Furthermore, Appellees have neither claimed nor
demonstrated prejudice or surprise. They participated in this proceeding by
initially filing an answer and later a petition to open the default judgment. In
both filings, Appellees acknowledged that the name of Appellee CDM Auto
Sales was incorrect in the complaint and should have been “CDM Auto Sales,
LLC.” Accordingly, the trial court abused its discretion.
Our inquiry, however, does not terminate here. We still must address
Appellees’ contention, as supported by the trial court’s rationale, that Rule
1033 does not apply to judgments. To accept this contention would invite an
absurd result in cases where, as here, more than 30 days after the entry of
judgment but within 90 days of the applicable statute of limitations period, a
party is permitted to amend his or her pleadings to correct a name in the
caption. Ordinarily, when a party is allowed to amend pleadings to correct a
name, the amendment carries through and is applied to all related filings. See
Pa.R.C.P. No. 1018 (relating to captions) and Pa.R.A.P. 904(b) (“The parties
shall be stated in the caption as they stood upon the record of the trial court
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at the time the appeal was taken.”). Under the circumstances of this case, to
permit an amendment of the pleadings to correct a name but to deny a
corresponding correction of the judgment would result in the pleadings and
the judgment bearing different and inconsistent captions. Thus, to avoid this
inconsistency, we interpret Rule 1033 to apply to judgments in situations
where, as here, pleadings are amended to correct the name of a party (not to
add a new party) after entry of judgment but within 90 days of the applicable
statute of limitations period. We, therefore, conclude that the trial court
abused its discretion in denying the Motion to the extent it sought to correct
the name of Appellee CDM Auto Sales in the caption and the text of the
judgment. In conclusion, we direct that the trial court permit Appellant to
amend the pleadings to correct the name of Appellee “CDM Auto Sales” to
“CDM Auto Sales, LLC”, and change the caption and the text of the underlying
default judgment to reflect the amended pleadings.
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/19
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