Hoare v. BELL TELEPHONE CO. OF PENN.

OPINION

ZAPPALA, Justice.

This is an appeal by Monarch Furniture Company from the Superior Court’s order, 333 Pa.Super. 634, 482 A.2d 671, reversing the order of the Westmoreland County Court of Common Pleas, which had denied a motion to add an additional defendant filed by Appellees James and Ruth Hoare. We granted allocatur and now reverse.

On May 8, 1981, Appellees James and Ruth Hoare commenced a trespass action by writ of summons against The Bell Telephone Company of Pennsylvania and the Appellant Monarch Furniture Company (Monarch), a corporation t/d/b/a Slumber City, for injuries allegedly sustained on May 10, 1979 when James Hoare fell on a sidewalk. A rule to file a complaint was issued subsequently. The Hoares filed written interrogatories to the defendants on July 2, 1981. On that date, the Hoares were granted twenty days from the filing of the defendants’ answers to interrogateríes in which to file a complaint.¹ Monarch filed its answers on August 21, 1981 which indicated that the date of its incorporation was November 19, 1979, and that prior thereto, Monarch was operated as a sole proprietorship by Milton Kotler. Both of the entities had properly registered their fictitious names. The Hoares then filed a motion to add Milton Kotler as an additional defendant because the injury complained of occurred during the time in which Monarch was operated as a sole proprietorship. The motion was denied by the court en banc. On appeal, the Superior Court reversed.

The issue presented by this appeal is whether a plaintiff may add an additional person as a defendant after the statute of limitations has expired. In Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), this Court held that

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused. [Citation omitted]

232 Pa. at 2, 81 A. 63. The Superior Court erred in holding that the trial court had improperly refused to permit the Hoares to bring Milton Kotler into the action after the statute of limitations had run. The effect of the joinder of Kotler as another defendant was not simply to correct the name of a party who was sued under a wrong designation, but was to bring in a new party in addition to Monarch, the corporate defendant.

The Superior Court emphasized the fact that the name “Monarch Furniture Company” was maintained throughout the change of form from sole proprietorship to corporation, and found this to be analogous to Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952), in which amendment was permitted.² In Waugh, the plaintiff had brought a trespass action against “Steelton Taxicab Company, a corporation.” After the statute of limitations had expired, the plaintiff learned that “Steelton Taxicab Company” was not a corporation, but was a fictitious name used by Anthony Kosir. The trial court denied plaintiffs motion to amend the complaint to substitute as defendant the name of “Kosir trading and doing business as the Steelton Taxicab Company.” This Court reversed, holding that the correct agency charged with responsibility was served, even though under a wrong name, and that the naming of Kosir would not bring in a new party, but would merely correct the name of a party already on the record.

The Superior Court ignored facts which distinguish the instant case from Waugh³ The Appellees did not seek to amend their complaint to substitute an individual doing business under a fictitious name for a non-existent corporation. The Appellees originally sued Monarch, a viable and existing corporate entity which is subject to suit, and did not sue Kotler, an individual also subject to suit. Unlike Waugh, the Appellees wish to add a party to the lawsuit. While it is true, as the Superior Court noted, that our rules permit liberal amendment of the pleadings in order to secure a proper determination of the merits, amendment must not be so liberally allowed as to redraft a legislated statute of limitations.

The order of the Superior Court is hereby reversed.

FLAHERTY, J., did not participate in the consideration or decision of this case. PAPADAKOS, J., joins in this majority opinion and files a concurring opinion. LARSEN, J., files a dissenting opinion.

1 . No complaint has ever been filed.

2 . We note, however, that the use of the word “company” or any abbreviation or derivation thereof by a proprietorship or corporation is permitted. 19 Pa.Code § 17.1(bX

3 . The Superior Court also relied upon the fact that the answers to interrogatories, which disclosed the date of incorporation, were delayed. This fact is irrelevant as the plaintiffs interrogatories were not even filed until after the statute of limitations had run. For has any fraud or concealment been alleged by the Appellees which would have prevented them from discovering the status of Milton Kotler or the corporate defendant.