Fick v. Barbon, 052920 PASUP, 1997 MDA 2019

Docket Nº:1997 MDA 2019
Opinion Judge:MURRAY, J.
Party Name:TERRENCE R. FICK, JR. Appellant v. BARRY BARBON
Judge Panel:BEFORE: OLSON, J., MURRAY, J., and COLINS, J.
Case Date:May 29, 2020
Court:Superior Court of Pennsylvania




No. 1997 MDA 2019

Superior Court of Pennsylvania

May 29, 2020


Appeal from the Order Entered November 20, 2019 In the Court of Common Pleas of Berks County Civil Division at No(s): 18-13137




Terrence R. Fick, Jr. (Appellant) appeals from the order granting summary judgment in favor of Appellee Barry Barbon (Barbon) and dismissing Appellant's complaint. We affirm.

The trial court detailed the facts and procedural history as follows:


On July 3, 2018, [Appellant] filed a personal injury action against [Barbon] for an accident that occurred on July 5, 2016. [Barbon] owns the vehicle that struck [Appellant]'s vehicle. [Appellant] did not sue the driver of the vehicle, Dean Reist [(Reist)]. [Barbon] was personally served on July 17, 2018, after the two-year statute of limitations had expired on July 5, 2018. [Barbon] filed an [a]nswer on July 23, 2018, denying that he was the operator of the vehicle at the time of the accident. On July 30, 2018, [Barbon]'s counsel informed [Appellant]'s counsel that [Reist], [Barbon]'s grandson, was operating the vehicle on the date of the accident.

On August 1, 2018, [Appellant] filed a [m]otion for [l]eave to [f]ile [an] [a]mended [c]omplaint to name [Reist] as the defendant. [Appellant] alleged that on August 2, 2017, his attorney spoke to the bodily injury liability adjuster for Nationwide Insurance Company of America (Nationwide), [Barbon]'s insurance carrier, to inquire about [Barbon]'s correct address for service of original process. [Appellant] further alleged that pursuant to DeRugeriis v. Brenner, 348 A.2d 139 (Pa. Super. 1975), where the named defendant or its insurer actively conceals the identity of the responsible party until after the statute of limitations expires, the limitations period is deemed tolled. [Appellant] contended that [Barbon] and Nationwide actively concealed the identity of [Reist] by not disclosing [Reist]'s identity when [Appellant]'s counsel asked for the proper address to serve [Barbon].

The parties engaged in discovery before [the trial] court heard argument on the issue.

* * *

Procedural History

After argument, by [o]rder dated January 3, 2019, [the trial] court denied [Appellant]'s [m]otion for [l]eave to [f]ile [an] [a]mended [c]omplaint. On March 22, 2019, [Appellant] filed a second [m]otion for [l]eave to [f]ile [an] [a]mended [c]omplaint to name [Reist] as a party defendant. [Appellant] contended that Pa.R.C.P. 1033(b) applied to the instant case. After argument, [the trial] court denied [Appellant]'s second motion.

On September 6, 2019, [Barbon] filed a [m]otion for [s]ummary [j]udgment, contending that [Appellant]'s claims must be dismissed as a matter of law. Following argument, [the trial] court granted this motion. [Appellant] filed a timely appeal.

Trial Court Opinion, 2/14/20, at 1-3.

The trial court and Appellant have complied with Pennsylvania Rule of Appellate Procedure 1925. On appeal, Appellant presents the following issues for review: 1. Whether the Honorable [t]rial [c]ourt erred and abused its discretion in denying [Appellant]'s [s]econd [m]otion for [l]eave to file an [a]mended [c]omplaint where: (1) Reist received notice of the instant litigation within 90 days of the running of the statute of limitations; (2) Reist knew or should have known that he would be named as a party defendant; and (3) Reist will not be prejudiced in maintaining a defense on the merits.

2. Whether the Honorable [t]rial [c]ourt erred and abused its discretion in denying [Appellant]'s [f]irst [m]otion for [l]eave to file an [a]mended [c]omplaint where [Barbon] and his agents actively misled [Appellant]'s undersigned counsel as to the identity of the driver in the motor vehicle accident at issue where [Barbon]'s agents knew the true identity of the driver of Barbon's vehicle on July 5, 2016 and knew or should have known that the driver of Barbon's vehicle would be at issue, and still did not disclose the identity of the driver to [Appellant]'s counsel until after the [s]tatute of [l]imitation had run.

3. Whether the Honorable [t]rial [c]ourt erred and abused its discretion in granting [Appellant]'s [m]otion for [s]ummary [j]udgment where, had the [c]ourt granted either of [Appellant]'s prior [m]otions for [l]eave to [f]ile [an] [a]mended [c]omplaint, genuine issues of material fact would exist regarding negligence and causation, requiring submission of the case to the jury as finder of fact.

Appellant's Brief at 7-8.

Appellant's first two issues challenge the trial court's denial of his two requests to file an amended complaint. "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." TCPF Ltd. P'ship v. Skatell, 976 A.2d 571, 574 (Pa. Super. 2009) (citations omitted). "An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will." Guntrum v. Citicorp Tr. Bank, 196 A.3d 643, 646 (Pa. Super. 2018).

In his first issue, Appellant challenges the trial court's denial of his second request to file an amended complaint. In support, Appellant asserts that the trial court failed to properly apply...

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