Zercher v. Coca-Cola USA

• Decision Date: 29 December 1994
• Docket Number: COCA-COLA
• Citation: 651 A.2d 1133,438 Pa.Super. 142
• Parties: Mauritia J. ZERCHER and Cleon S. Zercher, Appellants, v.USA, the Coca-Cola Company and Stainless Ice-Tainer Co. t/d/b/a the Sitco Company, Appellee.
• Court: Pennsylvania Superior Court

Page 1133

651 A.2d 1133

438 Pa.Super. 142

Mauritia J. ZERCHER and Cleon S. Zercher, Appellants, v. COCA-COLA USA, the Coca-Cola Company and Stainless Ice-Tainer Co. t/d/b/a the Sitco Company, Appellee.

Superior Court of Pennsylvania.

Argued Nov. 15, 1994.

Filed Dec. 29, 1994.

Daniel H. Shertzer, Jr., Lancaster, for appellants.

Jeffrey B. Rettig, Harrisburg, for Stainless Icetainer Co., appellee.

Before CAVANAUGH, POPOVICH and SAYLOR, JJ.

SAYLOR, Judge.

This is an appeal from an order entered in the Court of Common Pleas of Lancaster County which denied the petition of Appellants, Mauritia J. Zercher and Cleon S. Zercher, to amend their complaint. We affirm.

On January 3, 1989, Appellant, Mauritia Zercher, was allegedly injured when she slipped and fell on a puddle of soda water which had leaked from a soda machine. On January 3, 1991, the last day in the limitations period, Ms. Zercher and her husband filed a praecipe for a writ of summons naming as defendants Coca-Cola USA, the Coca-Cola Company (collectively "Coca-Cola") and Citco, T.M. ("Citco"), a registered trademark. On December 18, 1991, Appellants filed a complaint against Coca-Cola and Citco. No appearance was ever entered on behalf of Citco.

Subsequent investigation by Appellants revealed that the soda machine in question was manufactured by Stainless Ice-Tainer Company ("Ice-Tainer"), t/d/b/a The Sitco Company ("Sitco"). On October 5, 1993, nearly three years after filing the praecipe for a writ of summons and nearly two years after filing the complaint, Appellants filed a document entitled "reinstated complaint." In the reinstated complaint, Appellants deleted Citco from the caption as a party defendant, and substituted in its place Ice-Tainer. Appellants did not seek permission from the trial court to amend their complaint.

After the reinstated complaint was filed, Appellee, Ice-Tainer, entered its appearance and filed preliminary objections to the reinstated complaint, challenging service and personal jurisdiction over Ice-Tainer on the basis that it was a non-existent company. The preliminary objections also contained a motion to strike based upon the improper addition of a defendant to the complaint. The preliminary objections recited that on December 27, 1989, Ice-Tainer had merged into Schneider Metal Manufacturing Company ("Schneider") which later merged into IMI Cornelius, Inc. ("IMI"). The preliminary objections further stated that Citco properly referred to a trademark, which is not amenable to suit.

On December 9, 1993, Appellants filed a petition to correct the name of Ice-Tainer to IMI, and the prothonotary issued a rule returnable for argument on the petition. However, on December 10, 1993, the trial court, unaware of Appellants' petition and rule, granted Appellee's preliminary objections and dismissed the complaint as against Ice-Tainer. Appellee subsequently contested Appellants' petition to correct the name on the complaint, claiming that Appellants were attempting to add a new party to the litigation. The trial court agreed and denied the petition by way of an order entered on February 24, 1994. This appeal followed.

On appeal, Appellants contend that the trial court erred in denying their petition because they had originally sued the manufacturer of the soda machine under its tradename and were not attempting to add a new party to the litigation. They argue that absent an allegation of prejudice to the opposing party, their petition should not have been denied on the basis of the length of time which had passed since the date of the accident and the expiration of the statute of limitations.

Our standard of review from the denial of a petition to amend a complaint is as follows:

... [T]he decision to grant or deny permission to amend is within the discretion of the trial court and will be reversed only upon a showing of abuse of discretion.

Pitts v. Port East Pulaski Highway, 399 Pa.Super. 65, 67, 581 A.2d 677, 678 (1990).

Rule 1033 of the Pennsylvania Rules of Civil Procedure addresses corrections to the names of parties in a pleading and states, in pertinent part:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.

In order to secure a determination of cases on their merits the trial court should grant, whenever possible, a petition to change the name on a pleading. Jacob's Air Cond. v. Assoc. Heating, 366 Pa.Super. 430, 531 A.2d 494 (1987). However, if the other party suffers prejudice or surprise, the petition to change the name of a party will not be permitted. Id., 366 Pa.Super. at 433, 531 A.2d at 496, citing Spain v. Vincente, 315 Pa.Super. 135, 461 A.2d 833 (1983); Robinson Protective Alarm Co. v. Bolger & Picker, 512 Pa. 116, 516 A.2d 299 (1986).

Furthermore, a plaintiff may not add a new party after the expiration of the applicable statute of limitations. Hoare v. Bell Tel. Co., 509 Pa. 57, 500 A.2d 1112 (1985). One rationale underlying this rule "... is to insure that assets originally not subject to liability will not become subject to liability through court action after the statute of limitations has run." Lafferty v. Alan Wexler Agency, Inc., 393 Pa.Super. 400, 407, 574 A.2d 671, 673-674 (1990). ¹ Therefore, in cases where the statute of limitations has expired and a party seeks to amend its pleading to correct the name of a party, the issue is whether...