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POWELL v. SUTLIFF. (03/19/63)

March 19, 1963

POWELL, APPELLANT,
v.
SUTLIFF.



Appeal, No. 47, May T., 1962, from order or Court of Common Pleas of Cauphin County, Sept. T., 1956, No. 230, in case of Harry Powell v. Ellis Sutliff and Leo E. Sutliff, individually and as partners, trading and doing business as Sutliff Chevrolet Company. Order reversed; reargument refused April 30, 1963.

COUNSEL

P. F. Laughlin, with him James E. McLaughlin, and McArdle, Harrington & McLaughlin, for appellant.

John C. Dowling, with him Huette F. Dowling, and Dowling and Dowling, for appellee.

Before Bell, C.j., Musmanno, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 410 Pa. Page 437]

OPINION BY MR. JUSTICE COHEN

This action of trespass was instituted by the issuance of a summons in which the defendants were designated as "Ellis Sutliff and Leo E. Sutliff, individually and as partners, t/d/b/a Sutliff Chevrolet Company."*fn1 Service of the summons was made on Leo E. Sutliff, the individual in charge of the Chevrolet Company. A complaint was subsequently filed in which the defendants were designated in the same manner as described in the summons above. After the statute of limitations had run, plaintiff-appellant discovered that Sutliff Chevrolet was a corporation and not a partnership. He thereupon moved to amend his complaint to change the designation of the defendant-company from a partnership to a corporation.*fn2 The court below refused to permit the amendment on the grounds that it would introduce a new party into the action after the statute

[ 410 Pa. Page 438]

    of limitations had run against such party. This appeal followed.

This case is governed by Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947), a unanimous opinion of this Court written by Justice (later Chief Justice) HORACE STERN. In that case, the original complaint designated the defendant as the "'Pleasant Hills Realty Company, a corporation.'" After the statute of limitations had run, plaintiff attempted to change the description of the business entity from a corporation to a partnership. The test laid down by Justice STERN was 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. (357 Pa. at 29).

In permitting the amendment from a corporation to a partnership in that case, we observed that the original complaint had sought to impose liability against the assets of a business entity known as Pleasant Hills Realty Company. The amendment was not an attempt to impose additional liability on the individual owners of the company, but rather merely sought to correct the description of the business entity already made a party to the proceedings. The assets subject to liability were the same both before and after the amendment.*fn3

Although our case presents the converse of the Gozdonovic, situation, the reasoning of that case compels an identical result. Here, the original complaint sought to impose liability against the assets of the business entity known as Sutliff Chevrolet ...


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