Appeal, No. 21, May T., 1952, from judgment of Court of Common Pleas of Dauphin County, June T., 1950, No. 737, in case of Carlie Waugh v. Steelton Taxicab Company. Judgment reversed; reargument refused September 29, 1952.
Harold R. Prowell, with him Elmer E. Harter, Jr. and Prowell & Harter, for appellant.
Arthur Berman, with him Samuel Handler and Compton, Handler & Berman, for appellee.
Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The plaintiff, who was injured while riding in a taxicab owned by a "Steelton Taxicab Company", brought a suit in trespass against the said Steelton Taxicab Company, designating it as a corporation, only to find, after the statute of limitations had run, that the said taxicab "company" was not a corporation but a fictitious name used by Anthony John Kosir in the conduct of his taxicab business.
The plaintiff then obtained a rule on Kosir to show cause why the complaint should not be amended to substitute as defendant, instead of the designation originally employed, the name of Anthony John Kosir trading and doing business as the Steelton Taxicab Company. The lower court discharged the rule and the plaintiff appealed.
Legal principle and precedent, as well as elemental logic and justice coincide to authorize the filing of the amendment. The sheriff served the complaint at Kosir's business office and upon Pearl Clark, his employe. There is no doubt, therefore, that the correct agency charged with responsibility for the accident was served even though under a wrong name.
It would be strange indeed if the law would permit a person actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him named him Richard Roe instead of John Doe. In the case of Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 55 A. 978, the defendant actually served and actually responsible was the Eureka Copper Works, although the defendant was erroneously described as "Eureka Tempered Copper Company." The lower court there also refused to allow an amendment to correct the name. Upon appeal, this Court said: "In this case there is no dispute as to what was intended and what was actually done in bringing the suit.... He [counsel for plaintiff] served the right party, the manager of the copper works, and thus brought that company into court, but under a wrong name. The mistake in bringing the suit was in the name of the party actually summoned, and not in suing the wrong party, and the amendment should have been allowed. The judgment is reversed with a procedendo."
The same principle is involved where the entity sued is described as a corporation but it develops later that the defendant intended and actually served with process is a partnership. In McGinnis v. Valvoline Oil Works, Ltd., 251 Pa. 407, 96 A. 1038, the Court authorized an amendment which changed "The Valvoline Oil Works, Limited, a corporation," to "The Valvoline Oil Works, Limited," a partnership association. In Gozdonovic v. Pleasant Hills Realty Co., et al., 357 Pa. 23, 53 A.2d 73, the defendant was named as "Pleasant Hills Realty Company, a corporation." Subsequently discovering that the company was not a corporation, but a partnership, the plaintiff moved to amend and was permitted to do so although the statute of limitations had then run. On appeal here, this Court said: "The question for determination is whether the right party was
sued but under a wrong designation, or whether a wrong party was sued and the amendment was designed to substitute another and distinct party.... The defendant newly named under the amendment was merely the partnership entity... The amendment as allowed, therefore, did not substitute any new parties upon whom liability could be imposed; the action was still directed against the entity which was Kartub's ...