Ferraro v. McCarthy-Pascuzzo

• Decision Date: 21 May 2001
• Citation: 777 A.2d 1128
• Parties: Larry FERRARO and Kathleen Ferraro, Appellants v. Loretta McCARTHY-PASCUZZO, Appellee
• Court: Pennsylvania Superior Court

777 A.2d 1128

Larry FERRARO and Kathleen Ferraro, Appellants v. Loretta McCARTHY-PASCUZZO, Appellee

Superior Court of Pennsylvania.

Argued November 14, 2000.

Filed May 21, 2001.

Thomas Bruno, Philadelphia, for appellants.

Jennifer A. Mullen, Philadelphia, for appellee.

Before: FORD ELLIOTT, J., EAKIN, J., and CERCONE, President Judge Emeritus. CERCONE, President Judge Emeritus.

¶ 1 Appellants, Larry Ferraro and his wife, Kathleen Ferraro, appeal the order entered November 17, 1999, which denied their petition to amend their complaint, and the order of February 28, 2000 which granted summary judgment in favor of Appellee, Loretta McCarthy-Pascuzzo. For the reasons that follow, we affirm.

¶ 2 The relevant facts and procedural history of the case are as follows. This case arises from an accident that occurred on July 24, 1997, when Larry Ferraro, a pedestrian, was struck by a motor vehicle operated by Michael Pascuzzo. The police department arrived at the scene of the accident and prepared a report specifically identifying the operator of the vehicle as Michael Pascuzzo. See Police Incident Report, attached as Exhibit A to Defendant's Answer to Plaintiff's Petition to Amend, filed November 12, 1999. The incident report included the name and policy number of Mr. Pascuzzo's insurance carrier, USAA Casualty Insurance Company (USAA), and also listed two witnesses to the accident. The police report does not reference Loretta McCarthy-Pascuzzo, Michael Pascuzzo's wife.

¶ 3 The Ferraros subsequently retained an attorney, Vincent Ciecka, Esquire, who negotiated with USAA for damages resulting from the accident. A letter dated March 8, 1998, from Kevin James, a claims adjuster for USAA, to Attorney Ciecka states that after investigating the accident, USAA found that Larry Ferraro darted into traffic against the red light. See Letter dated 3/8/98, attached as part of Exhibit B appended to Defendant's Answer to Plaintiff's Petition to Amend, supra. Accordingly, USAA declined to pay any damages due to the accident. This letter references Loretta McCarthy-Pascuzzo as the policyholder, along with the reference number for the file, the date of loss, the loss location, and also lists Larry Ferraro as the client of Attorney Ciecka. Id. The letter does not, however, in any way specifically identify Loretta McCarthy-Pascuzzo as the driver of the vehicle at the time of the accident. Two (2) other letters written by Mr. James to Attorney Ciecka and three (3) letters from Mr. James to the Ferraros' former attorney, Attorney Robert Brown, also referenced Loretta McCarthy-Pascuzzo as the policyholder but in no way identified or insinuated that she was the driver at time of the accident. See Exhibit B, supra, Letters dated 12/15/97, 2/2/98, 10/19/98, 7/31/98 and 2/18/99.

¶ 4 On June 9, 1999, the Ferraros filed a complaint in the Philadelphia Court of Common Pleas, naming Loretta McCarthy-Pascuzzo as the sole defendant and identifying her as the driver of the vehicle which struck Larry Ferraro at the time of the accident. See Complaint filed 6/9/99 at ¶' s 5-6.¹ Counsel for Loretta McCarthy Pascuzzo entered her appearance on July 15th, 1999. On August 20, 1999, after the statute of limitations expired, Loretta McCarthy-Pascuzzo, through counsel, filed an answer and new matter specifically denying that she was the operator of any vehicle involved in the accident, and raising, inter alia, the statute of limitations as a defense. See Answer filed 8/20/99, at ¶ 's 5-6. On October 12, 1999, the Ferraros filed a petition to amend the complaint requesting that all prior references to Loretta McCarthy-Pascuzzo be amended to reflect that Michael Pascuzzo was the proper party to the action. In their petition, the Ferraros acknowledged that Loretta McCarthy-Pascuzzo was misidentified as the driver in the complaint. See Petition to Amend filed, 10/12/99, ¶ 7. Loretta McCarthy-Pascuzzo opposed the petition, and on November 17, 1999, the Ferraros petition to amend was denied by the Honorable Pamela Pryor Dembe of the Court of Common Pleas of Philadelphia.

¶ 5 On January 10, 2000, Loretta McCarthy-Pascuzzo filed a motion for summary judgment, arguing in support thereof that no evidence existed to show that she was a proper party to the suit, and that there was no legal basis to continue the lawsuit against her. On February 28, 2000, the Honorable Allan Tereshko of the Court of Common Pleas of Philadelphia granted the motion for summary judgment. This timely appeal followed.

¶ 6 In this appeal the Ferraros present three (3) issues for our consideration:

A. Did the trial court err and/or abuse its discretion by denying Plaintiff's Petition to Amend their Complaint to properly identify Michael Pascuzzo as the driver of the motor vehicle in Plaintiff's Complaint when it was clear that defense counsel knew of the misidentification, referred to Loretta McCarthy-Pascuzzo as the driver and purposely requested an extension of time to file an answer until after the Statute of Limitations?²

B. Did the trial court err and/or abuse its discretion in granting Defendant's Motion for Summary Judgment in that the tactics of defense counsel lulled Plaintiff's attorney about the identity of the driver and that Defendant is estopped from averring that Loretta McCarthy-Pascuzzo was the driver of the motor vehicle for purposes of this law suit?

C. Did the trial court err and/or abuse its discretion by denying Plaintiff's Petition to Amend their Complaint to properly identify Michael Pascuzzo as the driver of the motor vehicle in Plaintiff's Complaint by not applying New Jersey substantive law which liberally allows amendments to relate back to the original date of the pleading since both parties to the lawsuit were New Jersey residents and insured by New Jersey policies?³

Appellant's Brief at 2.

¶ 7 First, we note the applicable standards of review. The decision of the trial Court to deny a motion to amend a complaint is within the sound discretion of the trial court, and the trial court's determination will not be disturbed absent an abuse of that discretion. Heim, supra, 705 A.2d at 463, citing Sejpal v. Corson, Mitchell, Tomhave & McKinley, M.D.'S., Inc., 445 Pa.Super. 427, 665 A.2d 1198 (1995)

.

¶ 8 "On an appeal from a grant of summary judgment, a reviewing court must examine the record in a light most favorable to the nonmoving party, accepting as true all well-pleaded facts and giving that party benefit of all reasonable inferences which can be drawn from those facts." Brezenski v. World Truck Transfer, 755 A.2d 36, 38 (Pa.Super.2000). As our Court has stated previously:

Summary judgment may be properly entered only where (1) there is no genuine issue of material fact as to a necessary element of the cause of action which could be established by additional discovery or an expert report, or (2) after completion of discovery and production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action.

Heller v. U.P.S., 754 A.2d 689, 693 (Pa.Super.2000), citing Campanaro v. Pennsylvania Electric Company, 738 A.2d 472, 475-476 (Pa.Super.1999),

appeal denied, 561 Pa. 684, 751 A.2d 183, in turn citing Pa.R.C.P. 1035.2.

¶ 9 A trial court's decision to grant summary judgment will be over-turned only if there has been an error of law or clear abuse of discretion. Heller, 754 A.2d at 693. Our scope of review in these matters is plenary. Id. Thus, "we are not bound by a trial court's conclusions of law; instead, we may draw our own inferences and reach our own conclusions." Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa.Super.1997), appeal denied, 555 Pa. 725, 725 A.2d 178 (1998), citing Butterfield v. Giuntoli, 448 Pa.Super. 1, 670 A.2d 646 (1995), appeal denied, 546 Pa. 635, 683 A.2d 875 (1996).

¶ 10 Since the instant case is a personal injury action it is subject to a two-year statute of limitations. See 42 Pa.C.S.A. § 5524(2). The statute of limitations in this case expired on July 24, 1999, two years after the accident in which Mr. Ferraro was injured. Consequently, in October of 1999, at the time the Ferraros sought to amend the complaint to substitute Michael Pascuzzo as the defendant, the statute of limitations for the Ferraros' claims had expired.

¶ 11 Pennsylvania Rule of Civil Procedure 1033 provides that a party, by consent or leave of court, "may at any time change the form of action, correct the name of a party or amend his pleading." Pa.R.C.P. 1033. However, amendment of a complaint after the statute of limitations has expired will not be permitted where the amendment attempts to bring a new party into the action. As our Court has stated in a prior case:

A plaintiff may not add a new defendant after the applicable statute of limitations has expired. Hoare v. Bell Telephone Co. of Pennsylvania, 509 Pa. 57, 500 A.2d 1112 (1985); Zercher v. Coca-Cola USA, 438 Pa.Super. 142, 651 A.2d 1133 (1994). Thus, in cases where the statute of limitations has expired and a party seeks to amend its pleading to correct the name of party, the issue is whether the proposed amendment adds a new party to the litigation or merely corrects a party name. Jacob's Air Cond. v. Assoc. Heating, 366 Pa.Super. 430, 433, 531 A.2d 494, 496 (1987). "If an amendment constitutes a simple correcting of the name of a party, it should be allowed, Wicker v. Esposito, 500 Pa. 457, 457 A.2d 1260 (1983), but if the amendment in effect adds a new party, it should be prohibited. Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976)." Jacob's Air Cond. v. Assoc. Heating, supra, 366 Pa.Super. at 433, 531 A.2d at 496.

Zercher v. Coca-Cola USA, supra, 438 Pa.Super. at 146, 651 A.2d at 1135. If the proper party was sued but under the wrong designation, the correction will be allowed. However, where the wrong party was sued and the amendment is designed to substitute another, distinct

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