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JAMES E. HOARE AND RUTH HOARE v. BELL TELEPHONE COMPANY PENNSYLVANIA (11/26/85)

decided: November 26, 1985.

JAMES E. HOARE AND RUTH HOARE, HIS WIFE, APPELLEES,
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, A CORPORATION. AND APPEAL OF MONARCH FURNITURE COMPANY, A CORPORATION, T/D/B/A SLUMBER CITY



Appeal from Order of Superior Court of Pennsylvania, dated September 28, 1984 at No. 795 Pittsburgh, 1982, reversing and remanding the Order of the Court of Common Pleas of Westmoreland County, Civil Division Pennsylvania, dated June 16, 1982 at No. 3843 of 1981. Pa. Super. 482 A.2d 671 (1984).

COUNSEL

Donald R. Rigone, Fisher, Long & Rigone, Greensburg, for appellant.

James E. Sinwell, R.E. Valasek, R.E. Valasek Law Office, Lower Burrell, Gary M. Lang; Feldstein, Grinberg, Stein & McKee, Pittsburgh, for James E. Hoare, et ux.

B. Patrick Costello, Costello & Berk, Greensburg, for The Bell Telephone Co. of Pennsylvania, a corp.

Nix, C.j., and Larsen, McDermott, Hutchinson, Zappala and Papadakos, JJ. Flaherty, J., did not participate in the consideration or decision of this case. Papadakos, J., joins in this majority opinion and files a concurring opinion. Larsen, J., files a dissenting opinion.

Author: Zappala

[ 509 Pa. Page 58]

Opinion

This is an appeal by Monarch Furniture Company from the Superior Court's order, 333 Pa. Super. 634, 482 A.2d 671, reversing the order of the Westmoreland County Court of Common Pleas, which had denied a motion to add an additional defendant filed by Appellees James and Ruth Hoare. We granted allocatur and now reverse.

On May 8, 1981, Appellees James and Ruth Hoare commenced a trespass action by writ of summons against The Bell Telephone Company of Pennsylvania and the Appellant Monarch Furniture Company (Monarch), a corporation t/d/b/a Slumber City, for injuries allegedly sustained on May 10, 1979 when James Hoare fell on a sidewalk. A rule to file a complaint was issued subsequently. The Hoares filed written interrogatories to the defendants on July 2, 1981. On that date, the Hoares were granted twenty days from the filing of the defendants' answers to interrogatories

[ 509 Pa. Page 59]

    in which to file a complaint.*fn1 Monarch filed its answers on August 21, 1981 which indicated that the date of its incorporation was November 19, 1979, and that prior thereto, Monarch was operated as a sole proprietorship by Milton Kotler. Both of the entities had properly registered their fictitious names. The Hoares then filed a motion to add Milton Kotler as an additional defendant because the injury complained of occurred during the time in which Monarch was operated as a sole proprietorship. The motion was denied by the court en banc. On appeal, the Superior Court reversed.

The issue presented by this appeal is whether a plaintiff may add an additional person as a defendant after the statute of limitations has expired. In Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), this Court held that

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused. [Citation omitted]

232 Pa. at 2, 81 A. 63. The Superior Court erred in holding that the trial court had improperly refused to permit the Hoares to bring Milton Kotler into the action after the statute of limitations had run. The effect of the joinder of Kotler as another defendant was not simply to correct the name of a party who was sued under a wrong designation, but was to bring in a new party in addition to Monarch, the corporate defendant.

The Superior Court emphasized the fact that the name "Monarch Furniture Company" was maintained throughout the change of form from sole proprietorship to corporation, and found this to be analogous to Waugh v. ...


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