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JACOB'S AIR CONDITIONING AND HEATING v. ASSOCIATED HEATING AND AIR CONDITIONING (09/22/87)

filed: September 22, 1987.

JACOB'S AIR CONDITIONING AND HEATING, APPELLANT,
v.
ASSOCIATED HEATING AND AIR CONDITIONING



Appeal from the Order entered November 5, 1986 in the Court of Common Pleas of Montgomery County, Civil Division, No. 84-17327.

COUNSEL

Scudder G. Stevens, Philadelphia, for appellant.

William E. Jones, West Grove, for appellee.

Montemuro, Kelly and Cercone, JJ.

Author: Cercone

[ 366 Pa. Super. Page 431]

The issue before this court is whether the trial court properly denied appellant leave to file an amended complaint after the statute of limitations had run on the underlying action. We hold that the trial court did err in not permitting the amended complaint.

Appellant, Jacob's Air Conditioning and Heating, commenced this action by filing a summons on November 14, 1984, followed by the filing of a complaint on May 21, 1985 against appellee, Associated Heating and Air Conditioning, for amounts due in connection with appellant's alleged sale of services and materials regarding installation of certain "Peerless Boilers". On July 29, 1985, appellee filed preliminary objections to appellant's complaint to which appellant subsequently filed an amended complaint on September 10, 1985. Appellee then filed preliminary objections to appellant's amended complaint on September 25, 1985. Included in appellee's preliminary objections was the objection that appellant did not have legal capacity to bring this action as Jacob's Air Conditioning and Heating was not registered as either a Pennsylvania corporation or a foreign corporation authorized to do business within the Commonwealth of

[ 366 Pa. Super. Page 432]

Pennsylvania. On October 17, 1985, appellant filed an answer to appellee's preliminary objections contending, inter alia, that appellant is a Pennsylvania corporation and has the capacity to bring this action.

The lower court entered an order on October 6, 1986, neither sustaining nor dismissing appellee's preliminary objections to the amended complaint and directing the parties, pursuant to Rule 1028(c) of Pennsylvania Civil Procedure, 42 Pa.C.S.A. "to present evidence in compliance with the standard outlined in 42 Pa.C.S.A. § 6103, regarding the status of appellant's corporate existence under 15 P.S. §§ 1206 and 1207". Appellee subsequently submitted a Department of State Certificate to the court demonstrating that a search of the relevant Commonwealth records had failed to disclose a corporation entitled Jacob's Air Conditioning and Heating. Thereafter, on November 5, 1986, the court sustained appellee's preliminary objections raising the defense of lack of capacity to sue, dismissed appellant's amended complaint and dismissed the remaining preliminary objections as moot.

In the interval between the time appellant filed an amended complaint, in which he maintained that Jacobs Air Conditioning and Heating was a Pennsylvania corporation, and the time appellant filed a petition for reconsideration, the statute of limitations had expired on the underlying cause of action. On November 17, 1986, appellant filed a petition for reconsideration stating that the statute of limitation on the underlying action had in fact run and that appellant should have been granted the opportunity to amend the complaint to show that the individual, Fred P. Jacobs and the fictitious name Jacob's Air Conditioning and Heating were one and the same entity or agent, and further that defendant knew of this sameness of capacity as a fact. Appellants request was denied on November 20, 1986, and this timely appeal followed.

The initial focus of our inquiry must begin with Rule 1033 of Pennsylvania Civil Procedure 42 ...


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