Clark v. Wakefern Food Corp.

• Decision Date: 25 October 2006
• Citation: 910 A.2d 715
• Parties: Valerie CLARK, Appellant, v. WAKEFERN FOOD CORP., t/a Shop Rite # 411, Appellee.
• Court: Pennsylvania Superior Court

910 A.2d 715

Valerie CLARK, Appellant, v. WAKEFERN FOOD CORP., t/a Shop Rite # 411, Appellee.

Superior Court of Pennsylvania.

Argued August 30, 2006.

Filed October 25, 2006.

Matthew K. Hubbard, Philadelphia, for appellant.

Thomas J. Bradley, Philadelphia, for appellee.

BEFORE: KLEIN, BOWES and KELLY, JJ.

OPINION BY KLEIN, J.:

¶ 1 Clark filed a slip-and-fall action for injuries she allegedly suffered at a Shop Rite store. She appeals from the denial of her motion to amend the complaint to correct the name of the corporate owner of the store and the consequent dismissal of her complaint on statute of limitations grounds. We believe the refusal to amend the complaint was error and therefore, reverse.

¶ 2 In this case:

(a) the defendant store was served under the name of Shop Rite, which is its "corporate name" under Pa.R.C.P. 2176, as it is the name under which the corporate entity that owns the store conducts business;¹

(b) the corporate owner had actual knowledge of the claim and the complaint; and

(c) the corporate owner's agent, the insurance adjuster, provided the wrong corporate name to Clark's attorney.

¶ 3 Therefore, although Wakefern may be dismissed from the complaint, we are constrained to reverse and remand for the amendment of the complaint. The defendant store may then file an answer or other pleading, containing the actual name of its corporate owner.

I. Facts and Procedure

¶ 4 Clark claims that on December 5, 2002, she slipped and fell on ice and snow that had accumulated outside the entrance to the Shop Rite supermarket at 310 West Chelten Avenue in Philadelphia. By letter dated May 8, 2003, Clark's counsel wrote to Shop Rite's store manager advising of the claim. By letter dated June 20, 2003, Shop Rite's insurer, Lumbermen's Mutual Casualty, acknowledged the claim, listed the insured as "Shop Rite # 411" and sent counsel a medical release authorization form. By letter also dated June 20, 2003, Lumbermen's requested counsel to provide Clark's date of birth, social security number, and place of residence and advised counsel to call if he wished to discuss the claim further. By letter dated July 28, 2004, Broadspire Services Inc., acting on Lumbermen's behalf, acknowledged receipt of counsel's letters dated April 30, 2004 and July 8, 2004, and requested further information. The Insured was listed as "Wakefern Food Corporation."

¶ 5 When the matter was not resolved, service of the complaint was made on "Wakefern Food Corporation t/a Shop Rite # 411" on December 10, 2004 by serving the person in charge of the store where the fall took place. As it turns out, the Shop Rite in question was not owned by Wakefern, a New Jersey Corporation, but instead by a different entity.

II. Discussion

A. Service was made on the proper party.

¶ 6 It is not disputed that service was properly made at the store where the alleged slip and fall took place. The issue then becomes whether the motion to amend the complaint is to correct the name of a party or to bring in a new party that is separate from the party named.

¶ 7 The Rules of Civil Procedure provide that actions against a corporation or similar entity shall be prosecuted in its "corporate name." Pa.R.C.P. 2177. However, this "corporate name" is not only the formal corporate designation. The corporate name is defined in Pa.R.C.P. 2176:

"corporate name" means any name, real or fictitious, under which a corporation or similar entity was organized, or conducts business, whether or not such name has been filed or registered.

Id. (emphasis added). The defendant in this case is certainly the Shop Rite store upon whose property Clark allegedly fell. It is undisputed that the store is operating as a Shop Rite supermarket. Although the number of the store may or may not have been correct in the caption, "Shop Rite" was served and the owner and operator of the store is using the corporate name, "Shop Rite." Therefore, under the rules, there was proper service on the corporate owner of the store. Thus, the proposed amendment is not an attempt to add a new party since the party named was "Shop Rite," the corporate name of the store's actual owner.

¶ 8 Our Supreme Court addressed this issue in Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947). In Gozdonovic, the plaintiff sued a defendant designated as "Pleasant Hills Realty Company, a corporation." After the statute of limitations expired, Gozdonovic attempted to amend the caption to change the description of the entity from a corporation to a partnership. The Court permitted the amendment, stating that the test was whether "the right party was sued under a wrong designation" or "a wrong party was sued and the amendment was designed to substitute another and distinct party." Id. at 76.

¶ 9 In the case of Waugh v. Steelton Taxicab, 371 Pa. 436, 89 A.2d 527 (1952) our Supreme Court again held that an amendment to correct the caption should be permitted. In that case, Waugh was hurt in a cab that bore the legend, "Steelton Taxicab Company." The suit was brought against "Steelton Taxicab Co." However, Steelton Taxicab Company was not a corporation, but instead the cab was owned by Anthony John Kosir, who did business as Steelton Taxicab Company. The Court stated:

Legal principle and precedent, as well as elemental logic and justice coincide to authorize the filing of the amendment. The sheriff served the complaint at Kosir's business office and upon Pearl Clark, his employee. There is no doubt, therefore, that the correct agency charged with responsibility for the accident was served even though under a wrong name.

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

Id. at 528. Approximately ten years after Waugh, our Supreme Court ruled similarly in Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). In Powell, a summons was served for a trespass action on the person in charge of a Chevrolet dealership in the name of "Ellis Sutliff and Leo E. Sutliff, individually and as partners, t/d/b/a Sutliff Chevrolet Company." In fact, the entity was a corporation. Citing Gozdonovic, supra, the Court permitted the amendment to the corporate entity, saying,

The amendment was not an attempt to impose additional liability on the individual owners of the company, but rather merely sought to correct the description of the business entity already made a party to the proceedings. The assets subject to liability were the same both before and after the amendment.

189 A.2d at 865.

¶ 10 In the instant case, it is the assets of the entity operating a Shop Rite at 301 West Chelten Avenue, sued as Shop Rite # 411, which are subject to liability. While Wakefern should not be subject to liability, the true owner of the store where the manager accepted service and the insurance carrier started processing the claim should be. It is frequently difficult for a plaintiff to wade through the corporate morass to identify the titled operator of a store. Often the owner of the property is not the entity responsible for running the store and keeping the walks clean. Stores such as Shop Rite put up large signs, spend great sums of money on advertising, and otherwise induce people to come to a "Shop Rite" store. When the owner of the store wants its customers to think they are at a "Shop Rite," and a customer later sues "Shop Rite" and makes service on the very store premises by serving the person in charge, the actual corporate entity created to own the store should not be heard to complain. To find otherwise would contradict the purpose of Pa.R.C.P. 2177, which permits service on a business entity by the name under which it does business and advertises to the public.

B. Defendant's agent misrepresented the corporate name.

¶ 11 Clark did not pull the name of "Wakefern Food Corp." out of the blue. It was supplied by Shop Rite's agent, i.e., its insurer. Clark's initial communication was with the manager of the store under the name Shop Rite. This communication was acknowledged by the agents for the store, first the insurance company and later the entity acting to resolve the claim on behalf of the insurance company. It was these agents that supplied the names "Shop Rite # 411" and "Wakefern Food Corporation."

¶ 12 Therefore, this case fits under the ambit of Blaine v. York Financial Corporation, 847 A.2d 727 (Pa.Super.2004). Blaine fell while inspecting a house as a prospective buyer. He tried to negotiate with the Chubb Group of Insurance Companies. The claim representative sent Blaine a letter identifying the insured as York Financial Corporation. It turns out that the owner was not York Financial Corporation but York Federal Savings and Loan Association. Because this Court found "active misrepresentation" on the part of the defendant, it permitted the amendment of the caption. This Court noted that it did not matter whether the misrepresentation was intentional; the determinative factor was that a misrepresentation was made by the defendant's agent.

¶ 13 The same pattern applies in this case. Certainly when a plaintiff serves a store and the store manager passes the complaint on to its insurance company, the insurance company is acting as an agent on the store's behalf and is charged with knowing who employs it and what entity operates the store. Whether or not she did so intentionally, the claims agent misrepresented the corporate name by listing the wrong name as the insured. Clark should not be prejudiced by that misrepresentation.

¶ 14 It is the defendant that has the means to know the actual corporate entity that owns or operates a store, information which is difficult for a plaintiff to ascertain. If the plaintiff serves the manager of the store in question and uses the name of the store, that should be sufficient. Even more...