(a) Amendments. A party may amend the party's pleading once
as a matter of course at any time before a responsive pleading
is served or, if the pleading is one to which no responsive
pleading is permitted and the action has not been placed upon
the trial calendar, the party may so amend it any time within
20 days after it is served. Otherwise, a party may amend the
party's pleading only by leave of court or by written consent
of the adverse party; and leave shall be freely given when
justice so requires...
(c) Relation Back of Amendments. An amendment of a pleading
relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides
the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading
arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
(3) the amendment changes the party or the naming of the
party against whom a claim is asserted if the foregoing
provision (2) is satisfied and, within the period
provided by Rule 4(m) for service of the summons and
complaint, the party to be brought in by amendment (A)
has received such notice of the institution of the action
that the party will not be prejudiced in maintaining a
defense on the merits, and (B) knew or should have known
that, but for a mistake concerning the identity of the
proper party, the action would have been brought against
The liberal tenor of Rule 15 is reinforced by the often-recognized principle that the Federal Rules of Civil Procedure are to be liberally construed so as to effectuate the underlying goal that cases be tried on the merits wherever possible. See Generally : Long v. Lipkins, 96 F.R.D. 234 (E.D.Pa. 1983); Ratcliffe v. Insurance Co. of North America, 482 F. Supp. 759 (E.D.Pa. 1980). The relation back provision of Rule 15(c) thus permits a plaintiff who named the wrong party as defendant under certain circumstances to amend their complaint so as to name the proper party. Haamid v. U.S. Postal Service, 754 F. Supp. 54, 56 (E.D.Pa. 1991). See Also : Daly v. U.S. Dept. of The Army, 860 F.2d 592 (3rd Cir. 1988); Jordan v. Tapper, 143 F.R.D. 567, 573-574 (D.N.J. 1992). Under Rule 15(c)(3) then, an amended complaint will only relate back if: (1) the claims asserted in the amended pleading arise out of the conduct, transaction or occurrence set forth in the original pleading; (2) within the period provided by law for commencing the action against them, parties to be brought in have received such notice of the institution of the action that they will not be prejudiced in maintaining their defense on the merits; and (3) the new parties knew or should have known that, but for the mistake concerning the identity of the proper parties, the action would have been brought against them. Saviour v. City of Kansas City, Kan., 793 F. Supp. 293, 296 (D. Kan. 1992). It has further been stated that Rule 15(c)(3) does not require that the newly named party receive notice of the suit or become aware of the misidentification within the prescribed limitations period for the particular cause of action, but rather requires that the newly named party receive notice of the suit or become aware of the misidentification in the pleadings within the prescribed period for service of process--120 days after the filing of the original complaint according to Rule 4(m). Hill v. U.S. Postal Service, 961 F.2d 153, 155 (11th Cir. 1992).
The notice requirement has been held to be the "critical element" in deciding whether an amendment relates back, even in the context of additional parties. Advanced Power Systems, Inc. v. Hi-Tech Systems, Inc., 801 F. Supp. 1450, 1456 (E.D.Pa. 1992). The conclusion of a growing number of courts and commentators is that to be effective under Rule 15(c), notice need not be formal and thus sufficient notice may be deemed to have occurred where a party who has some reason to expect his potential involvement hears of the commencement of litigation through some informal means. Id. ; Kinnally v. Bell of Pennsylvania, 748 F. Supp. 1136, 1141 (E.D.Pa. 1990). The notice and mistake elements are particularly intertwined when there is a close relationship between the original party and the party to be added because failure to join the connected party is more immediately recognizable as error. Advanced Power Systems, at 1457. Therefore, courts have generally held that the mistake condition is satisfied when the original party and the added party have a close identity of interests. Id., quoting Sounds Express Int'l, Ltd. v. American Themes and Tapes, Inc., 101 F.R.D. 694, 697 (S.D.N.Y. 1984). Indeed, when a corporate entity is named in a complaint, those who own it or run its day-to-day business are typically deemed to have received constructive notice of the action. 801 F. Supp. at 1456, citing Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253 (11th Cir. 1983) and Seber v. Daniels Transfer Co., 618 F. Supp. 1311 (W.D.Pa. 1985).
Viewing the matter now before us in light of the preceding principles, we find that the plaintiff's amended complaint is virtually identical to her original pleading in terms of the claims raised and the facts averred with the exception that David Goldstein is now a named party and is alleged to be "an adult individual doing business as and trading as Wayne Manor Apartments and/or Lincoln Management Company." There is thus no question but that the claims asserted in the amended complaint arise out of the same occurrence or transaction as those presented in the original complaint.
The record evidence and docket entries in this case also clearly reflect that David Goldstein has had notice of this lawsuit since its inception inasmuch as his assistant, Judy Sasse, accepted service of the original complaint in this action on March 25, 1993 and Mr. Goldstein himself answered the interrogatories which plaintiff propounded in August, 1993 and was deposed on behalf of the defendants in November, 1993 and February, 1994. Mr. Goldstein has described himself in his responses to the plaintiff's discovery requests as the sole proprietor and operator of the Wayne Manor Apartments and it was he who signed the lease agreement which the plaintiff and her roommate entered into with Wayne Manor Apartments on April 29, 1991. We are therefore unable to find that Mr. Goldstein would suffer any prejudice by the relation back of the amended complaint to the date of filing of the original complaint. Finally, as is particularly evidenced by the answer which was originally filed in this matter on behalf of the defendants in which they admitted the plaintiff's allegations concerning their identities and ownership, a very close identity of interests exists between David Goldstein and Wayne Manor Apartments and/or Lincoln Management Company such that it is self-evident that Mr. Goldstein knew that but for the plaintiff's error (and the defendants' concealment of that error) he also would have been named as a defendant in the initial complaint. We thus conclude that all three of the requirements set forth in Fed.R.Civ.P. 15(c)(3) have been met here and that the amendments made in plaintiff's amended complaint relate back to the date of the filing of her original complaint.
Moreover, as exhibit "f" to the plaintiff's answer to the instant summary judgment motion indicates, there exists a material issue of fact as to whether or not Irving Goldstein, in partnership with his son David Goldstein, still has an interest in the Wayne Manor Apartment complex. Exhibit "f" is an affidavit from a private investigator with Independent Research Group, Inc., which states that the records in the Philadelphia County Recorder of Deeds and Tax Assessment offices all suggest that the listed owner of the complex property located at 6200-6208 Wayne Avenue in Philadelphia is Irving Goldstein and David Goldstein.
Accordingly, and for all of the reasons enumerated above, we cannot find that the plaintiff's claims are barred by the two-year statute of limitations for negligence claims established under Pennsylvania law or that the defendants are now entitled to the entry of summary judgment in their favor as a matter of law. An appropriate order follows.
AND NOW, this 28th day of April, 1994, upon consideration of Defendants' Motion for Summary Judgment, it is hereby ORDERED that the Motion is DENIED for the reasons set forth in the preceding Memorandum.
BY THE COURT:
J. CURTIS JOYNER, J.