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KATHLEEN A. HODGEN v. RICHARD L. SUMMERS AND JOYCE E. GALLAGHER (03/06/89)

filed: March 6, 1989.

KATHLEEN A. HODGEN, APPELLANT,
v.
RICHARD L. SUMMERS AND JOYCE E. GALLAGHER, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of York County, No. 85-SU-04195-01

COUNSEL

Gregory Martin, York, for appellant.

Val E. Winter, York, for Summers, appellee.

Bruce Bankenstein, York, for Gallagher, appellee.

Wieand, Olszewski and Tamilia, JJ.

Author: Wieand

[ 382 Pa. Super. Page 349]

Kathleen Hodgen filed a complaint against Richard Summers and Joyce Gallagher in which she sought to recover damages for personal injuries sustained in a vehicular accident occurring on September 13, 1985. More than two years after the accident had occurred, she requested leave of court to amend her complaint in order to add a claim for the damages to her vehicle arising from the same accident. The trial court denied this request, holding that a claim for property damage was barred by the two year limitation

[ 382 Pa. Super. Page 350]

    imposed by 42 Pa.C.S. § 5524(3). Plaintiff appealed. We affirm.

The applicable law is stated at 5 Std.Pa.Prac. § 24:41 as follows:

Although Rule 1033 of the Pennsylvania Rules of Civil Procedure generally permits the amendment of a complaint to include new causes of action, the Rule does not change the well-established principle that an amendment which introduces a new cause of action which is barred by the statute of limitations will not be allowed. This principle is based on the broad proposition that the courts, while disposed to be liberal in the allowance of amendments, and to construe the amendment rules liberally so as to prevent the defeat of justice through mere mistake, do not allow amendments which will prejudice the defendant by depriving him of some substantial right. The criterion for determining whether or not an amendment may be made after the statute of limitations has run is whether the defendant will be prejudiced by the amendment or whether the cause of action is changed thereby. The general principle that amendments which will deprive the opposite party of any valuable right. Thus, after the statute of limitations has run, the plaintiff cannot, by an amendment, shift the ground of complaint set forth originally, or enlarge its surface by introducing a new and different cause of action, or cure a material, vital, or fatal defect in his complaint; an amendment to a complaint in an action instituted within the statutory period is not permissible after the expiration of that period where, in reality, the purpose is to introduce a new cause of action. (footnotes omitted).

Thus, our courts have held that "an amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant. However, if the proposed amendment does not change the cause of action but merely amplifies that which has ...


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