Appeal from order of Court of Common Pleas of Delaware County, No. 2635 of 1963, in case of James Saracina, a minor, by his parents and natural guardians, John Saracina and Lucy Saracina, et al. v. Anthony Cotoia, a minor.
John A. Reilly, for appellants.
Ernest L. Green, Jr., with him Butler, Beatty, Greer and Johnson, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno and Mr. Justice Cohen join in this dissent.
This appeal attacks the validity of an order which dismissed a petition to amend a complaint in trespass after the expiration of the statute of limitations.
On April 7, 1961, the minor plaintiff, James Saracina, was struck by an automobile in Ridley Township, Delaware County. On March 22, 1963, a trespass action was instituted by complaint in the Court of Common Pleas of Delaware County. On October 25, 1963, an answer having been filed six months previously, a petition to amend the complaint was filed and subsequently dismissed.
The complaint named as defendant "Anthony Cotoia, a minor." Paragraph three of the complaint alleged: "On or about April 4, 1961, . . . Defendant Anthony Cotoia owned and was operating a motor vehicle
. . . [which] came into collision with the minor Plaintiff who was then and there crossing the said [street] . . . ." Paragraph four alleged that the accident was due solely to the negligence of the "defendant". The named defendant filed an answer stating that he was not a minor and that, while he was the owner of a motor vehicle, he was not operating it at the time and place of the accident set forth in the complaint. He further averred that his motor vehicle was being operated by Robert Catoia, his son, solely for his (the son's) own business and pleasure and that, he, the named defendant, was not present in the motor vehicle and did not exercise any control or supervision over the operation of the vehicle.
Saracina now seeks to amend his complaint*fn1 (a) to change the name of the defendant from Anthony Cotoia to Robert Catoia,*fn2 a minor, and (b) to change paragraph three as follows: "On or about April 7, 1961, . . . Defendant Robert Catoia, was operating a motor vehicle owned by his father, Anthony Catoia . . . [which] came into collision with the minor Plaintiff who was then and there standing on the said [street] . . . ." (Emphasis supplied). As noted previously, this petition was dismissed and this appeal taken.*fn3
The issue before us is whether, under the present facts, a complaint, after the expiration of the applicable statute of limitations, may be amended (1) to change the proper name of the defendant, (2) to change the date of the alleged accident ...