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CHARLES SCOTT THOMAS v. DUQUESNE LIGHT COMPANY (06/13/88)

filed: June 13, 1988.

CHARLES SCOTT THOMAS, A MINOR BY HIS PARENTS AND NATURAL GUARDIANS, CHARLES FREDERICK THOMAS, JR. AND JUDITH THOMAS, AND CHARLES FREDERICK THOMAS, JR. AND JUDITH THOMAS, HUSBAND AND WIFE, IN THEIR OWN RIGHT, APPELLANTS,
v.
DUQUESNE LIGHT COMPANY, PITTSBURGH, CHARTIERS & YOUGHIOGHENY RAILWAY COMPANY, KENNY WATSON, NORMAN COUSINS, AND MAE LUNARDI D/B/A DARIO'S DISTRIBUTOR A/K/A DARIO'S BEER DISTRIBUTORS, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD83-16967.

COUNSEL

Frank E. Little, Pittsburgh, for appellants.

William K. Herrington, Pittsburgh, for Duquesne Light, appellee.

Wieand, Montemuro and Popovich, JJ. Popovich, J., files a dissenting opinion.

Author: Wieand

[ 376 Pa. Super. Page 3]

Charles Scott Thomas, age 15, consumed beer, became intoxicated, climbed an electrical transmission tower, came into contact with a high voltage line, was burned, and fell one hundred feet to the ground. In an action brought by the minor plaintiff's parents to recover damages, a default judgment was entered against Kenny Watson, the adult who had purchased the beer; and the trial court entered a compulsory non-suit against the beer distributor which had sold the beer. The claims against Duquesne Light Company, which owned the tower, the Pittsburgh, Chartiers & Youghiogheny Railway Co., which owned the land on which the tower had been erected, and Norman Cousins, who had

[ 376 Pa. Super. Page 4]

    given the minor plaintiff and his friends a ride to the site of the tower, were submitted to the jury. The jury found that the causal negligence of the minor plaintiff had been more than fifty (50%) percent, and verdicts were entered in favor of Duquesne Light Co., the Pittsburgh, Chartiers & Youghiogheny Railway Co., and Norman Cousins. In the claim against Watson, the defaulting defendant, the jury found that the parents of the minor plaintiff had incurred medical expenses in the amount of $61,562.63 and assessed the minor plaintiff's damages at $375,000.00. As between Watson and the minor plaintiff, however, the jury determined that Watson's causal negligence was only thirty (30%) percent and the minor plaintiff's negligence was seventy (70%) percent. Post-trial motions were denied, and judgments were entered on the verdict. The parents of the minor plaintiff appealed.

I. The verdict in favor of Duquesne Light Company and the Pittsburgh, Chartiers & Youghiogheny Railway Co.

In support of their request that a new trial be granted with respect to the claims against Duquesne Light Co. and the Pittsburgh, Chartiers & Youghiogheny Railway Co., appellants argue generally that the trial court erred in refusing their requested points for charge.*fn1 However, if a requested point for charge is sufficiently and adequately covered in the trial court's jury instructions, it is not error to deny the requested point even though it may contain a correct statement of the law. Olson v. Dietz, 347 Pa. Super. 1, 6, 500 A.2d 125, 127-128 (1985). In evaluating the adequacy and correctness of the trial court's jury instructions, "[w]e look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party." Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 231,

[ 376 Pa. Super. Page 5489]

A.2d 1291, 1305 (1985). See: Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977).

In the instant case, the trial court's instructions to the jury have not been transcribed. For this reason the trial court found it impossible to address the errors alleged by appellants. For the same reason this Court, on appeal, is unable to review the trial court's jury instructions to determine whether error occurred. Ward v. Babbit, Inc., 270 Pa. 370, 113 A. 558 (1921). See also: Wolfe v. Scott, 275 Pa. 343, 119 A. 468 (1923); Duff v. Hamlin, 272 Pa. 245, 115 A. 829 (1922). It was the appellants who shouldered the burden of producing a record sufficient to enable an appellate court to conduct meaningful review. See: Commonwealth v. Williams, 357 Pa. Super. 462, 516 A.2d 352 (1986). Without a transcript of the trial court's instructions to the jury, we are unable to find therein any basis for awarding a new trial against Duquesne Light and the Pittsburgh, Chartiers & Youghiogheny Railway Co. Appellants have advanced no reason for awarding a new trial in the claim against Norman Cousins.

II. The Compulsory Non-suit entered in favor of the beer distributor

There are two aspects to our review of the compulsory non-suit entered by the trial court in favor of the beer distributor. The first requires that we review the trial court's refusal to allow an amendment of the complaint at trial to name the correct owner of the beer distributorship.

The complaint, when filed on October 7, 1983, had named Mae Lunardi as the proprietor of the distributing business. Lunardi's answer had contained a denial that she was the owner of the distributorship and had alleged that she was president of Dario's Beer Distributors, a corporation, which owned the business. Despite this answer, appellants did nothing to amend their complaint until September 29, 1986, after they had presented their entire case at trial. At the close of their case-in-chief, appellants orally requested leave of court to amend their complaint to name Dario's Beer

[ 376 Pa. Super. Page 6]

Distributor, a Pennsylvania corporation, as a party defendant instead of Mae Lunardi, d/b/a Dario's Distributors a/k/a Dario's Beer Distributors.*fn2 On June 25, 1982, when the beer had been sold, the owner of the distributorship was in fact the corporation, the business having been incorporated sometime in 1981. The trial court refused to allow the amendment, stating that to allow it would entail the joinder of a new party after the statute of limitations had expired.*fn3

The applicable rule of law was stated in Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), as follows:

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.

Id., 232 Pa. at 2, 81 A. at 63. See also: Hoare v. Bell Telephone Co. of Pa., 509 Pa. 57, 500 A.2d 1112 (1985); Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947).

In Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), the plaintiff had named as a defendant "Bart Bertocci, Inc." and had alleged that this defendant controlled the work site at which plaintiff had been injured. The answer contained an averment that there was no such corporation but that there was a partnership known as "Bertocci Construction Company" which had been doing construction work at the site of the accident. Plaintiff did not move to amend the complaint to name the correct defendant until one year and seven months after the answer had been filed and more than three years after the statute of limitations had run. The trial court disallowed the amendment. The Supreme Court reversed. The Supreme Court said that "[s]ince from

[ 376 Pa. Super. Page 7]

    the record it is clear that the same Bertocci business enterprise was involved throughout, there is here no substitution of parties, but the correction of the designation under which the right party was originally sued. The amendment should have been allowed." Id., 442 Pa. at 441, 275 A.2d at 321. A similar result was attained in Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). There, the plaintiff had sued "Ellis Sutliff and Leo E. Sutliff, individually and as partners t/d/b/a Sutliff Chevrolet Company." After the statute of limitations had expired, the plaintiff sought to substitute Sutliff Chevrolet, a corporation, as a party defendant. The trial court refused the amendment, and the Supreme Court reversed. It said: "[T]he proposed amendment merely seeks to correct the designation of that business entity, in this case from a partnership to a corporation. Since the assets subject to liability will not be enlarged, the court below erred in not permitting the amendment." Id., 410 Pa. at 438-439, 189 A.2d at 865 (footnote omitted). See also: Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952) (proposed amendment changing defendant from Steelton Taxicab Company, a corporation, to Anthony Kosir, t/a Steelton Taxicab Company permitted after statute of limitations had run); Gozdonovic v. Pleasant Hills Realty Co., supra.

These decisions are controlling of the right to amend the complaint in this case. Here, it seems clear that the plaintiffs sued the proper party but that the party defendant was erroneously designated in the complaint. Thus, plaintiffs' complaint was served upon Dario's Beer Distributors by handing a copy of the complaint to the corporate treasurer, Ronald Lunardi. The answer to the complaint, moreover, was signed and verified by Mae Lunardi individually and in her capacity as president of the corporation. Other pleadings and record documents filed in the case appeared to be on behalf of the corporation and were signed by counsel for the corporation. Finally, the beer distributor's answers to interrogatories identified the defendant as "Dario's Beer Distributors, a Pennsylvania corporation."

[ 376 Pa. Super. Page 8]

These answers were verified by Ronald Lunardi, the treasurer of the corporation. From the outset, therefore, and throughout the pendency of this action, it is clear that plaintiffs were attempting to impose liability upon the business entity known as Dario's Beer Distributors. Thus, the amendment to correct the designation of the defendant beer distributor would not have added a new party. Dario's Beer Distributors was the party served, and it cannot escape accountability merely because it was initially designated as a sole proprietorship instead of a corporation. As the Supreme Court observed in Waugh v. Steelton Taxicab Co., supra, 371 Pa. at 438, 89 A.2d at 528:

It would be strange indeed if the law would permit a person actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him named him Richard Roe instead of John Doe.

Although we cannot and do not condone the delay plaintiffs exhibited in failing to move promptly to amend their complaint, this delay is not alone dispositive of the issue before us. See: Paulish v. Bakaitis, supra, 442 Pa. at 439 n. 4, 275 A.2d at 320 n. 4. Because the plaintiff sued the proper party, but incorrectly designated that party as a sole proprietorship, the trial ...


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