Appeal From Order Dated November 18, 1975 of the Court of Common Pleas of Delaware County, Civil Action, Law Entered at Number 2366 of 1970. No. 549 October Term, 1976.
Haws & Burke, James S. Kilpatrick, Jr., Ardmore, for appellants.
George P. Noel, R. E. Cherwony, Media, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Price, J., files a dissenting opinion.
[ 241 Pa. Super. Page 439]
This appeal is taken from the order of the lower court denying appellants' petition to amend their complaint in trespass.
The instant case arose out of a motor vehicle accident on April 26, 1968, in which the minor-plaintiff, Ann Cianchetti, was struck by an automobile owned and operated by the appellee, Henry J. Kaylen.*fn1 The ensuing negotiations between Henry J. Kaylen's insurance company, Transamerican Insurance Group, and appellants, failed to produce a settlement. Appellants, therefore, commenced an action in trespass on March 6, 1970, but named Harry J. Kaylen as the defendant. After several unsuccessful attempts at service, the sheriff returned the complaint. On May 11, 1970, the complaint was reinstated, and on May 26, 1970, the sheriff personally served the complaint on Henry J. Kaylen.
[ 241 Pa. Super. Page 440]
Counsel entered an appearance on behalf of Henry J. Kaylen on June 8, 1970. On June 11, 1970, however, counsel petitioned to withdraw his appearance alleging that the named defendant, Harry J. Kaylen, had died on February 15, 1965. Appellants filed an answer to the petition to withdraw*fn2 and a petition to amend their complaint to change the name of the defendant from Harry J. Kaylen to Harry J. Kaylen also known as Henry J. Kaylen. On June 24, 1970, counsel for Harry J. Kaylen filed preliminary objections to appellants' petition to amend alleging that the statute of limitations had expired prior to the attempted amendment. Pursuant to stipulation between counsel on February 28, 1972, counsel for Harry J. Kaylen withdrew his June 8, 1970 appearance and counsel for Henry J. Kaylen entered his appearance. On appellee's (Henry J. Kaylen) motion, the lower court on October 30, 1972, dismissed appellants' complaint for failure of the appellant to proceed. Appellants filed a petition to open on November 3, 1972, which was granted by the lower court on May 8, 1975. On November 18, 1975, the lower court denied appellants' petition to amend and this appeal followed.
Rule 1033 of the Pennsylvania Rules of Civil Procedure provides that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. . . ." The right to amend pleadings should be liberally granted in order to secure a determination on the merits whenever possible. See Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965). See also, 2A Anderson Pa. Civil Practice, 401-403; 1 Goodrich-Amram § 1033-1; 3 Standard Pa.
[ 241 Pa. Super. Page 441]
Practice (Revised) 659. An amendment of the complaint, after the statute of limitations has run, to bring in a new and distinct party to the action cannot be permitted. See Paulish v. Bakaites, 442 Pa. 434, 275 A.2d 318 (1971); Saracina v. Cotoia, supra; Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963); Thompson v. Peck, 320 Pa. 27, 181 A. 597 (1935). The operative test, therefore, is "'. . . whether the right party was sued but under a wrong designation, or whether a wrong person was sued and the amendment was designed to substitute another and distinct party.'" Paulish v. Bakaites, supra at 440, 275 A.2d at 321, quoting Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 27, 53 A.2d 73 (1947).
The lower court determined that Saracina v. Cotoia, supra, mandated the denial of appellants' petition to amend. In Saracina the plaintiff was struck by an automobile driven by Robert Cotoia. Plaintiff's complaint, however, named Robert Cotoia's father, Anthony Cotoia, as the defendant. Anthony Cotoia's answer admitted ownership, denied that he was the driver of the automobile at the time of the accident and stated that his son, Robert Cotoia, was operating the car for his (the son's) own pleasure. After the statute of limitations had run, the plaintiff attempted to amend his complaint to change the named defendant from Anthony to Robert Cotoia. Our Supreme Court stated that "[t]he issue before us is whether . . . a complaint, after the expiration of the applicable statute of limitations, may be amended (1) to change the ...