Saracina v. Cotoia

Dissenting Opinion by

Mr. Justice O’Brien :

The plaintiff-appellant filed a suit in trespass against Anthony Ootoia, a minor. This action grew out of an accident between the plaintiff and Robert Ootoia, a minor, when Robert was driving the automobile of his father, Anthony Ootoia.

The plaintiff identified the defendant by the wrong first name, but otherwise identified him as a minor and as the party who was, in fact, involved in the accident.

The plaintiff sought to amend the complaint to the proper first name of the defendant he had so obviously intended to sue. The lower court and the majority in this court felt that such an amendment would have the effect of bringing in a new party after the Statute of Limitations had run. The facts, however, do not bear this out. The plaintiff desired to sue Robert and he still wants to sue Robert. He mistakenly, however, used the wrong first name in his complaint. This case is on all fours with Wright v. Eureka Tempered Copper Co., 206 Pa. 274, 55 A. 978 (1903). In that case as stated in the majority opinion: “. . . Eureka Tempered Copper Works succeeded to the business of the Eureka Tempered Copper Company. A suit was commenced against the Copper Works and it was discovered, after the statute of limitations had run, that the new corporation bore a slightly different name. Since the intended party was in court, the manager of the Copper Works having been served, and the effect of the amendment was merely to change the incorrect designation of the correct defendant, the amendment was allowed.” The complaint was served at the home of the intended defendant, Robert, and Robert obviously had knowledge of his acts and this suit.

I believe that it would be a gross miscarriage of justice if the complaint is not permitted to be amended and a party escapes liability through a mere de minimis error. I would, therefore, reverse the court below and permit the amendment of the defendant’s first name.

Mr. Justice Musmanno and Mr. Justice Cohen join in this dissent.