Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thom v. CDM Auto Sales

Superior Court of Pennsylvania

October 18, 2019

SOFIA N. THOM Appellant
v.
CDM AUTO SALES AND JENNIFER SCHAEFFER Appellees

          Appeal from the Order Entered December 14, 2018 In the Court of Common Pleas of Northampton County Civil Division at No.: C-48-CV-2017-7387

          BEFORE: OLSON, STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STABILE, J.

         Appellant Sofia N. Thom appeals from the December 14, 2018 order of the Court of Common Pleas of Northampton County ("trial court"), [1] which denied her self-styed "Motion for Leave to Amend Name of Defendant In Caption of Case and Underlying Default Judgment" (the "Motion"). Upon review, we reverse.

         The facts and procedural history of this case are uncontested. Briefly, following Appellant's February 14, 2017, purchase of a used vehicle from Appellees, she filed on September 14, 2017, a civil complaint against them alleging fraud, a violation of the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), negligence, negligent misrepresentation, breach of implied warranty of fitness for a particular purpose, and breach of express and implied warranty of merchantability.[2] See Complaint, 9/14/17, at ¶¶ 17-51. On October 10, 2017, Appellant issued a "Notice of Praecipe for Entry of Judgment of Default for Failure to Plead" (the "Notice") to Appellees, advising them that they had ten days from the date of the Notice to file an answer in this case to avoid the entry of a default judgment against them. On October 30, 2017, Appellant filed a praecipe for judgment for $8, 000.00 against Appellees.

         On November 6, 2017, Attorney Keene Jabbour entered his appearance on behalf of Appellees. On the same day, Attorney Jabbour filed an answer to the September 14, 2017 complaint, seeking the dismissal thereof. In the answer, Appellees asserted that the name of Appellee CDM Auto Sales was incorrect in the complaint and should have been "CDM Auto Sales, LLC." On April 13, 2018, more than five months later, Appellees filed a "Petition to Open Default Judgment." Therein, Appellees once again asserted that it was CDM Auto Sales, LLC, and not CDM Auto Sales, that sold the vehicle in question to Appellant. The trial court, after issuing a rule to show cause, denied the petition to open default judgment on September 18, 2018.

         On September 28, 2018, Appellees filed a motion for reconsideration of the trial court's September 18, 2018 order denying their petition to open default judgment. The trial court denied reconsideration on October 2, 2018. On November 21, 2018, more than one year after the entry of the underlying default judgment and more than two months after the trial court's denial of the petition to open judgment, Appellant filed the instant Motion, seeking to amend Appellee CDM Auto Sales' name in the caption and in the underlying judgment. In particular, Appellant sought to change the name of Appellee CDM Auto Sales to "CDM Auto Sales, LLC." In support, Appellant alleged that on November 15, 2018, Appellees' counsel answered her February 22, 2018 interrogatories stating that CDM Auto Sales, LLC was not a party to this action. On December 14, 2018, following a hearing, the trial court issued an order and opinion, denying the Motion, concluding that Pa.R.C.P. No. 1033 applied only to amendments of pleadings and not judgments. On December 21, 2018, Appellant moved for reconsideration, which the trial court denied on January 2, 2019. Appellant timely appealed on January 7, 2019. The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant complied, raising several assertions of error. In response, the trial court issued a Pa.R.A.P. 1925(a) statement, wherein it adopted its December 14, 2018 opinion.

         On appeal, Appellant raises a single issue for our review:

[I.] Did the trial court err by not permitting amendment of the caption and underlying judgment to reflect the corporate designation of the entity defendant when, in fact, no new party was added to the case and where the entity defendant led [Appellant] to believe its name was something else?

Appellant's Brief at 5.

         It is settled that the trial court "enjoys 'broad discretion' to grant or deny a petition to amend" pleadings. The Brickman Grp., Ltd v. CGU Ins. Co., 865 A.2d 918, 9267 (Pa. Super. 2004) (citation omitted); see General Mach. Corp. v. Feldman, 507 A.2d 831, 834 (Pa. Super. 1986) (noting that Rule 1033 is completely subject to the discretion of the trial court). We therefore use an abuse of discretion standard in reviewing a trial court's order granting or denying a petition to amend. Id.

         Rule 1033 provides:

(a) A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading.[3] The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

(b) An amendment correcting the name of a party against whom a claim has been asserted in the original pleading relates back to the date of the commencement of the action if, within 90 days after the period provided by law for commencing the action, the party received notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

Pa.R.C.P. No. 1033(a) and (b) (emphasis added). It is "beyond peradventure that leave to amend pleadings has traditionally been liberally granted in this jurisdiction." Biglan v. Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984) (citations omitted); see Pa.R.C.P. No. 126. As can be seen from the clear language of Rule 1033, no limit is imposed on the time when an amendment may be made. Thus, "[p]leadings may be amended at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom."[4]Id. at 1025-26 (emphasis added) (citing Sheppard v. First Pennsylvania Banking & Tr. Co., 184 A.2d 309, 311 (Pa. Super. 1962)); see also Keller V. R.C. Keller Motor Co., 124 A.2d 105, 106 (Pa. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.