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SLACK v. TREADWAY INN OF LAKE HARMONY

October 9, 1974

WILLIAM SLACK and PEARL SLACK, his wife
v.
TREADWAY INN OF LAKE HARMONY, INC. d/b/a SPLIT ROCK LODGE and SPLIT ROCK LODGE, INC.



The opinion of the court was delivered by: NEALON

 NEALON, District Judge.

 This case is before me on a motion by the defendant Split Rock Lodge, Inc., to dismiss for failure to state a claim upon which relief can be granted, and on a motion by the defendant Treadway Inn of Lake Harmony, Inc. to dismiss on the ground that the action is barred by the applicable statute of limitations. The pertinent facts follow.

 Plaintiffs commenced this action on January 11, 1973 by filing a complaint against Split Rock Lodge, Inc., alleging that the named defendant had negligently allowed a dangerous condition to exist on its premises, as a result of which plaintiff Pearl Slack fell and was injured on January 15, 1971. Plaintiff William Slack, the husband of plaintiff Pearl Slack, sued for damages and loss of consortium as a result of his wife's fall. Jurisdiction is based on diversity of citizenship.

 At an evidentiary hearing held March 18, 1974, the following additional facts were adduced. On July 21, 1967, defendant Split Rock Lodge, Inc. deeded Split Rock Lodge, a recreational resort facility located in Carbon County, Pennsylvania, to defendant Treadway. On the same date, both parties entered into a written agreement whereby Treadway was assigned the exclusive right to use the names "Split Rock" and "Split Rock Lodge" in connection with the operation, advertising and promotion of the resort, and Split Rock Lodge, Inc. was permitted to retain the use of its name for corporate purposes only. Treadway has been the sole owner and operator of Split Rock Lodge since that date. Aside from the transactions of July 21, 1967, there is no other relevant relationship between Split Rock Lodge, Inc. and Treadway. For example, there are no common directors on the boards of the two entities. On August 24, 1966, Treadway registered the name "Split Rock Lodge" as a fictitious name with the Bureau of Corporations of the Commonwealth of Pennsylvania Department of State. *fn1"

 On January 15, 1971, while a guest at Split Rock Lodge, Mrs. Pearl Slack suffered the injury which is the basis of the present action. Exactly one week later, January 22, while she was still in the hospital as a result of the accident, she was visited by an agent of the Allstate Insurance Company, which was Treadway's insurer. This agent informed her that he represented Allstate, and that Allstate insured Split Rock Lodge; he also took a statement from her which described the circumstances of her fall on the premises of Split Rock Lodge.

 Since matters outside the pleadings have been presented to and not excluded by this Court, both motions at issue here must be treated as motions for summary judgment under Rule 56, Federal Rules of Civil Procedure. See Rule 12(b), Federal Rules of Civil Procedure. *fn2" As all parties have not only had ample opportunity to submit briefs, affidavits and other materials in support of their contentions, but also have had the benefit of a hearing on the questions at issue here, the motions will be treated here as motions for summary judgment.

 A. The Motion of Split Rock Lodge, Inc.

 Defendant Split Rock Lodge, Inc. argues that since it was in no way connected with Split Rock Lodge at the time of the accident which is the subject of this action, it cannot, under any legal theory, be liable to the plaintiffs. Since there are no genuine issues as to any material facts, defendant must prevail if its statement of the law is correct.

 Plaintiffs advance two theories upon which to base the liability of defendant Split Rock Lodge, Inc. The first is that said defendant is liable as the owner and possessor of the premises known as Split Rock Lodge. As it is undisputed that Split Rock Lodge, Inc. did not own or possess the resort at the time of the accident, that theory is untenable. The second theory, advanced in apparent anticipation of a holding that Split Rock Lodge, Inc. cannot be held liable under any conventional tort theory, is that said defendant is liable as the purported possessor of Split Rock Lodge. Even if plaintiffs could have established that Split Rock Lodge, Inc. held itself out as the purported possessor of Split Rock Lodge, which they were not able to do at the hearing held before the Court, I know of no basis in law for such a theory of liability, and plaintiffs have cited no cases in which such a theory was even advanced. Accordingly, as defendant Split Rock Lodge, Inc. was not the owner, possessor, lessor or operator of the premises in question at the time of plaintiff's accident, it is not responsible for plaintiff's injuries, and summary judgment must be granted in its favor.

 B. The Motion of Treadway

 Defendant Treadway argues that plaintiffs' claim against it must be dismissed because it was not commenced against Treadway within Pennsylvania's two-year statute of limitations for personal injury suits. *fn3" As plaintiffs amended their complaint to name Treadway as a defendant long after the two-year statute had run, and prior to that time Treadway had neither been named as a defendant nor otherwise notified of the pendency of this suit, the dispositive question on this motion is whether that amendment relates back to the date of the original complaint, which was admittedly filed before the statute of limitations had run.

 Because the amendment at issue here was one which changed the party against whom plaintiffs' claim was asserted, the question of whether such an amendment relates back to the original complaint is a question of federal law to be determined according to Rule 15(c), Federal Rules of Civil Procedure. Loudenslager v. Teeple, 466 F.2d 249 (3d Cir. 1972). Rule 15(c) *fn4" provides three conditions which must be satisfied in order for such an amendment to relate back: (1) the claim asserted in the amended pleading must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; (2) the party to be brought in by the amendment must have, within the period provided by law for commencing the action against him, received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits; and (3) the party to be brought in must or should, within the period of time provided by law for commencing the action against him, have known that, but for a mistake concerning the identity of the proper party, the action ...


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