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JOHNSON v. GOLDSTEIN

April 28, 1994

HEATHER JOHNSON
v.
DAVID GOLDSTEIN, d/b/a and/or t/a WAYNE MANOR APARTMENTS and d/b/a and/or t/a LINCOLN MANAGEMENT COMPANY and IRVING GOLDSTEIN



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 By way of the instant motion, the defendants in this civil personal injury action for the second time argue that they are entitled to the entry of summary judgment in their favor as a matter of law, this time on the basis of Pennsylvania's two-year statute of limitations. Like its predecessor, this motion is also denied for the reasons set forth in the paragraphs which follow.

 I. HISTORY OF THE CASE.

 This case arose on July 13, 1991 when the plaintiff, Heather Johnson, was sexually assaulted and robbed by an unidentified criminal assailant in the bedroom of the apartment which she was renting at the Wayne Manor Apartment Complex in Philadelphia. From all indications, the plaintiff's assailant gained access to her apartment by scaling the fire tower located adjacent to her kitchen window and slicing through the window screen. Unlike most of the other apartments in her building which were equipped with security bars on those windows to which access was possible from either the ground or the fire tower, the plaintiff's windows were not so equipped and it is on the basis of this omission that plaintiff brought this lawsuit asserting that the defendants breached the duty of care which they voluntarily assumed to provide her with a secure apartment. Jurisdiction is premised upon the diverse citizenships of the parties inasmuch as Ms. Johnson is now a Maryland resident. The original complaint in this matter was filed on March 23, 1993 alleging that Wayne Manor Apartments and Lincoln Management Company were businesses organized and existing under Pennsylvania law, that Irving Goldstein was a Pennsylvania citizen and the owner of the Wayne Manor Apartments, and that all three defendants were at all relevant times engaged in the leasing and management of the subject apartment complex where plaintiff was injured. These defendants filed an answer to the complaint on April 14, 1993 admitting all of these allegations. The case proceeded into the discovery phase with the Court entering a Scheduling Order on July 14, 1993 setting a discovery deadline for October 12, 1993, a motions deadline for November 1, 1993 and directing that the matter enter the trial pool on November 22, 1993. On September 27, 1993, the defendants moved for leave to file an amended answer to the complaint pursuant to Fed.R.Civ.P. 15(a) and this motion was granted on October 19, 1993. The defendants thereafter filed an amended answer on November 2, 1993 denying that Irving Goldstein was the owner of the Wayne Manor Apartment Complex and apparently for the first time averring that Wayne Manor Apartments and Lincoln Management Company were merely the name and fictitious name respectively under which the apartments were operated. On February 17, 1994 counsel for the parties stipulated that the plaintiff could file an amended complaint and, on March 11, 1994 this amended complaint was filed to include David Goldstein as a party defendant doing business or trading as Wayne Manor Apartments and/or trading as Lincoln Management Company. Defendants now contend that since Irving Goldstein does not own Wayne Manor Apartments and Lincoln Management Company, since those two entities have no independent or corporate status in that they are merely names under which David Goldstein does business and since David Goldstein was not made a party to this case until almost nine months after the two year statute of limitations expired, judgment must now be entered in their favor as a matter of law. We disagree.

 II. DISCUSSION.

 This case is one which is squarely governed by the provisions of Fed.R.Civ.P. 15 and the policies underlying amendments to pleadings filed in the district courts. *fn1" That rule states, in relevant part:

 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 ...


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