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Liberal Expansion of Pennsylvania Rule of Civil Procedure 1033

March 1, 2018

Defense Digest, Vol. 24, No. 1, March 2018

By Alex K. Yoder, Esq.*

Key Points:

  • Amendment of original pleading to change the name of a defendant is now permitted after the expiration of statute of limitations for “mistake.”
  • Ninety-day relation back period to the date of original commencement, if (1) the party to be named received notice of the action within 90 days of the expiration of the statute of limitations, and (2) the party knew or should have known the action would have been brought against them but for mistake regarding the identity of the proper party.

 

Effective April 1, 2017, Pa.R.C.P. 1033 has been amended to include the following addition of subpart (b) in bold:

Rule 1033. Amendment.

(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. 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 ninety 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 would have been brought against the party but for a mistake concerning the identity of the proper party.

The proposed addition to 1033 to include subpart (b) was originally included in the Civil Procedural Rules Committee’s Proposed Recommendation 256 on October 6, 2012. That recommendation also included proposed additions to what is now subpart (a) of 1033, which were adopted effective January 23, 2014. The additions included the following language in bold:

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. 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.

Pa.R.C.P. 1033 effective January 23, 2014.

Although the proposed subsection (b) was not originally adopted by the Supreme Court in response to the October 6, 2012, Proposed Recommendation, the court, after “further confidential deliberation,” adopted the addition, which is now subsection (b), by order dated February 2, 2017. The “further confidential deliberation” aspect of the adoption of subpart (b) is language provided by the Rules Committee during an informal discussion regarding the history of the proposed addition and subsequent adoption of subpart (b).

According to the Rules Committee, the original Proposed Recommendation was never re-published after the October 6, 2012, submission. The comments and suggestions received by the Rules Committee are confidential, as is the written submission(s) of the Proposed Recommendation from the Rules Committee to the Supreme Court.

Not confidential during the rule-making process are the Notes and Explanatory Comments included with the Proposed Recommendation. The Rules Committee included a Note with the October 6, 2012, Recommendation immediately following the proposed subpart (b) as follows:

Note: Notice shall include informal knowledge of the action and is not limited to the service of original process.

This outline of the procedural history of the addition of subpart (b) does provide some insight regarding how the liberal amendment will play out in litigation and potential issues to be aware of. The Note from the Rules Committee provides at least some indication that the committee contemplated the evidentiary issues that would arise upon the eventual adoption of subpart (b).

The Explanatory Comment to the Proposed Recommendation regarding the addition of subpart (b) provides an example of a hypothetical circumstance where the party to be included in the action after the statute of limitations has expired received notice of the action within 90 days of the expiration of the statute. That comment included the following example:

An accident occurs on March 30, 2010. A complaint is filed on March 26, 2012, and service is made on April 16, 2012. The complaint mistakenly identifies the driver who allegedly caused the accident as Robert Young of 2012 Fifth Avenue. However, the actual driver is Richard Young, who is Robert Young’s 18-year-old son and resides with him at 2012 Fifth Avenue. As a result of the service of the complaint, Richard Young is aware of the action, that he should have been named as a Defendant, and that the complaint mistakenly identifies his father as the driver.

Proposed Recommendation 256, Explanatory Comment, October 6, 2012.

While a helpful demonstration, this hypothetical does not include an example of what would be considered informal notice of the action, much less how a party would prove informal notice, within 90 days, and without prejudice to the party, in order to amend a pleading in accordance with the Rule. The Supreme Court included a similar example in Explanatory Comment to the Order Amending Rule 1033:

Harry Roberts, who resides at 949 Alcoma Street, Pittsburgh, PA, was the driver of an automobile which struck the plaintiff when he was crossing the intersection at Grant and Forbes Street, Pittsburgh, PA, at approximately 11:00 a.m. on October 11, 2013. The plaintiff’s complaint, filed on October 2, 2015, mistakenly identifies the driver as Henry Rosen. He is the only named defendant in the complaint.

On October 7, 2015, the Sheriff made service by serving Mary Roberts at 949 Alcoma Street, Pittsburgh, PA. She is described in the Sheriff’s Return as the wife of the defendant. On January 2, 2016, the Complaint is amended to correct “Henry Rosen” to “Harry Roberts.”

Order Amending Rule 1033, Explanatory Comment, February 2, 2017.

Both the example offered by the Rules Committee and by the Supreme Court include hypothetical situations where the defendant to be added is formally served with a complaint, presumably setting forth the applicable date, time and parties involved in the lawsuit. However, the potential issues from a defendant’s standpoint will likely encompass a situation similar to the following hypothetical:

  • An incorrect party is named;
  • That party is served with a writ of summons;
  • A complaint is filed, after the statute of limitations has expired;
  • The named defendant files for judgment on the pleadings;
  • The plaintiff attempts to amend the original pleading to include the proper defendant.

 

Presumably, the plaintiff in the above situation will have the burden to prove, or at least allege, that the proper defendant received notice of the action, such that it would not be prejudiced in defending the claim on the merits, and that it knew or should have known that the action would have been brought against it, but for a mistake (on behalf of the plaintiff) regarding the identity of the proper party.

Consider the following example. A conglomerate of real estate entities that operate myriad residential rental properties throughout many different states are incorporated under different names, but have the same service address and/or primary business address. A tenant in one of those properties is injured and files a Writ of Summons against the incorrect entity, not naming the actual property owner. The Writ of Summons is served at the correct address and accepted by the proper service agent due to the entities having the same address. Defense counsel then files a Praecipe for Rule to File Complaint which is issued by the Prothonotary, a Complaint is filed, and served at the address of the incorrect named defendant but also the address of the proper defendant. If the complaint is filed and served within 90 days after the expiration of the statute of limitations, the proper defendant would then be on notice of the action and arguably should have known that, but for the mistake, it would have been named the correct party.

Because the Rule still requires that a party seek leave of the court in the absence of consent of the adverse party, it is most likely that a party brought into a lawsuit by amendment under § 1033 after the applicable statute of limitation has expired will need to object to its involvement in the action after having been added upon motion of the plaintiff approval of court. The new “proper” defendant will need to file an answer with new matter, alleging the statute of limitation defense, followed by a motion for judgment on the pleadings once the pleadings are closed. In order to have a defense to the notice claim and “knew or should have known” aspect—which will be included in a plaintiff’s motion for leave to amend—defense counsel, even if aware of the action, should not be encouraged to acknowledge the existence of the action as outlined above until at least 90 days from the expiration of the statute of limitation.

The Supreme Court’s explanatory comment in the order adopting subsection (b) goes on to include, “[T]he amendment of Rule 1033 does not alter the concealment doctrine and the discovery rule. The amendment is intended to cover in which neither the concealment doctrine nor the discovery rule apply.” See Order & Explanatory Comment at 2017 Pa. LEXIS 238.

*Alex is an associate in our Harrisburg, Pennsylvania office. He can be reached at 717.651.3515 or akyoder@mdwcg.com.

 

Defense Digest, Vol. 24, No. 1, March 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

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Alex K. Yoder
Associate
(717) 651-3515
akyoder@mdwcg.com

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