Opinion
1367 WDA 2023
09-10-2024
CHERYL A. BRONICO Appellant v. IMPACT COUNSELING SERVICES, LLC, JAMES A. NOYE, AND TRACY LNU
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered October 16, 2023 In the Court of Common Pleas of Cambria County Civil Division at No(s): 2023-1152.
Benjamin D. Kohler, Esq.
BEFORE: OLSON, J., MURRAY, J., and BENDER, P.J.E.
MEMORANDUM
MURRAY, J.:
Cheryl A. Bronico (Appellant) appeals the trial court's order denying her motion to file a second amended complaint against Impact Counseling Services, LLC (Impact), Tracy LNU (Impact and Krider collectively referred to as Consulting Defendants), and James A. Noye (Noye) (all defendants collectively referred to as Defendants), as made final by the discontinuance of Appellant's case against Noye, entered on March 1, 2024. Consulting
At the time she filed her complaint, Appellant claimed not to know the last name of this defendant. Subsequently, Appellant discovered her name: Traci Krider (Krider).
Defendants have filed a motion to quash the appeal as interlocutory. We deny the motion to quash, reverse the order of the trial court, and remand for Appellant to file her proposed amended complaint.
The factual history is not relevant to this appeal. The relevant procedural history is as follows. Appellant filed a complaint against Defendants on March 27, 2023. On May 1, 2023, Appellant filed a praecipe to reinstate the complaint. Consulting Defendants filed preliminary objections to Appellant's complaint on May 3, 2023. Appellant filed a response to these preliminary objections on May 24, 2023.
Appellant sought damages for Defendants' breach of contract, intentional infliction of emotional distress (IIED), and invasion of privacy. Appellant's claims related to her drug and alcohol treatment provided during her probation.
Relevantly, the preliminary objections claimed "Tracy LNU" is not a party to this case because the name is not a person or entity. Preliminary Objections, 5/3/23, at 4 (heading).
On June 9, 2023, Appellant filed an Amended Complaint replacing Tracy LNU with "Traci Krider." Amended Complaint, 6/9/23; see also Trial Court Opinion, 8/17/23, at 2.
On June 20, 2023, Noye filed preliminary objections to Appellant's amended complaint. However, two days later, Appellant filed a praecipe to enter a default judgment against Noye. Praecipe, 6/22/23. Noye filed a motion to strike/open the default judgment on June 29, 2023. Motion to Strike, 6/29/23. That same day, Consulting Defendants filed preliminary objections to Appellant's amended complaint. Preliminary Objections (Consulting Defendants), 6/29/23. Consulting Defendants objected, inter alia, to replacing the designation Tracy LNU with Krider's name. Id. ¶¶ 18-22.
Appellant filed objections to Noye's motion to strike/open on July 27, 2023.
On July 31, 2024, Appellant filed a motion for leave to amend her complaint (motion for leave to amend), requesting permission to identify Tracy LNU as Krider. Motion For Leave to Amend, 7/31/23, at 1. In her motion, Appellant detailed her efforts to discover Krider's identity, and averred that she discovered Krider's actual name on April 26, 2023. Id. ¶ 3(k).
On August 17, 2023, the trial court filed an opinion and order.
Relevantly, the trial court struck the default judgment entered against Noye. Trial Court Opinion, 8/17/23, at 3 ("[T]he default judgment against [] Noye should not have been entered; the default judgment is void and hereby vacated/stricken."). The trial court sustained Noye's objections to all causes of action except Appellant's IIED count. Id. at 5. Thus, that count against Noye remained pending.
The trial court also sustained Consulting Defendants' preliminary objections. In particular, the trial court dismissed Appellant's cause of action against Consulting Defendants under 42 Pa.C.S.A. 8725(b) (invasion of privacy), and her action against Impact for IIED. Trial Court Order, 8/17/23, ¶ 4. The trial court further ordered,
[Appellant] may file an amended complaint within twenty (20) days. If [Appellant] fails or otherwise declines to file an amended
complaint within the time limit, all claims dismissed in this Order shall be deemed dismissed with prejudice.Id. ¶ 5.
On September 7, 2023, Appellant filed a motion for leave to file an amended complaint, with her proposed amended complaint attached thereto. Motion, 9/7/23. On September 27, 2023, Noye and Consulting Defendants filed responses opposing Appellant's motion for leave to amend. Two days later, Appellant filed preliminary objections to Defendants' responses. Objections, 9/29/23.
Finally, on October 16, 2023, the trial court denied Appellant's motion for leave to amend to substitute Krider for Tracy LNU, stating the motion did not comply with the statutory requirements for substituting a party. Trial Court Order, 10/16/23, ¶ 2. The trial court further denied leave to file an amended complaint, deeming the motion for leave to amend untimely filed. Id. ¶ 1.
Appellant appealed the court's October 16, 2023, order. Appellant and the trial court have complied with Pa.R.A.P. 1925. On March 1, 2024, while this appeal was pending, Appellant discontinued her action against Noye.
Appellant presents the following issues for our review:
1. Whether the trial court abused its discretion by denying [Appellant's] motion [for leave] to amend ... as untimely[,] when the pleading was, in fact, filed on time in compliance with the Pennsylvania Rules of Civil Procedure?
2. Whether, assuming arguendo, that the trial court correctly determined that [Appellant's] motion for leave to amend her
complaint was untimely, the trial court abused its discretion by denying [Appellant']s motion because it was filed one day late where there has been no suggestion and certainly no evidence of prejudice to [Defendants]?
3. Whether the trial court abused its discretion in denying [Appellant] the right to amend her complaint because she attempted to do so through a motion for leave to [amend], in accordance with the requirement of Pa.[]R.C.P. 1033, instead of unilaterally filing the amended complaint, especially where the trial court's August 17, 2023[,] order was, at best, ambiguous as to which of the dismissed claims [Appellant] was authorized to amend without leave of court?
4. Whether the trial court's efforts to justify its concededly erroneous decision that [Appellant's] motion to amend her complaint was untimely by coming up with [a] retrospective, postorder explanation that [Appellant] filed a motion or leave to amend her complaint instead of filing an amendment to her complaint was an abuse of discretion?
5. Whether the trial court erroneously dismissed [Appellant's] breach of contract claim against Impact, her violation of her right to privacy claim against Impact, Noye and Tracy LNU, and her IIED claim against Impact and Tracy LNU, all with prejudice pursuant to the trial court's August 17, 2023[,] order[,] which became effective only after the court issued its October 16[, 2023,] order wrongfully denying [Appellant's] motion [for leave] to amend ... ?
6. Whether the trial court abused its discretion by denying [Appellant] the right to substitute the true name of [Krider] for the fictitious placeholder Tracy LNU based on a superficial and unnecessarily rigid reading of the Pennsylvania Rules of Civil Procedure, with no effort to reconcile the facial inconsistency between the time limits in [Civil] Rule 2005 and Rule 1033, and the completely inaccurate claim that [Appellant] had not complied with Rule 2005(c) by failing to file an affidavit with her efforts to amend her complaint, despite the plain language in Rule 1033 authorizing the filing of an amendment "at any time" and despite the fact that affidavits were, in fact, attached to [Appellant's] July 31, 2023[,] and September 7, 2023[,] motions to amend her complaint in compliance with that Rule?Appellant's Brief at 6-8 (issues reordered; footnote omitted; capitalization modified).
Initially, we address Consulting Defendants' motion to quash. Consulting Defendants claim Appellant appealed from an interlocutory order. Motion to Quash, 3/1/24, ¶ 16. According to Consulting Defendants, the trial court's October 16, 2023, order dismissed all claims against Consulting Defendants, but claims remained against Noye. Id. ¶¶ 12-13. As such, Consulting Defendants argue, the order did not "dispose[] of all claims and [] all parties." Id. ¶ 14 (quoting Pa.R.A.P. 341(b)(1)). Consulting Defendants further argue the order is not a final order as defined by statute, was not entered as a final order, and is not an interlocutory order appealable as of right. Id. ¶¶ 15-16. Finally, Consulting Defendants argue the trial court did not certify the interlocutory order for immediate appeal. Id. ¶ 17.
Appellant counters that her discontinuance of the action against Noye rendered the trial court's October 16, 2023, order final. Response Opposing Motion to Quash, 3/6/24, at ¶ 5. According to Appellant, "there are no longer any parties or claims remaining in [her] Complaint[.]" Id.
"[T]he question of appealability implicates the jurisdiction of this Court[.]" McGrogan v. First Commonwealth Bank, 74 A.3d 1063, 1074 (Pa. Super. 2013) (citation omitted).
As a general rule, "an appellate court's jurisdiction extends only to review of final orders." Shearer v. Hafer, ... 177 A.3d 850, 855 (Pa. 2018); see also Pa.R.A.P. 341(a) ("[A]n appeal may be
taken as of right from any final order of a ... trial court."). A final order is an order that "disposes of all claims and of all parties" or "is entered as a final order" pursuant to a determination of finality by a trial court or other government unit. Pa.R.A.P. 341(b)(1), (3). . "[T]he final order rule reflects the long-held limitation on review by both federal and state appellate courts[,]" and "[c]onsidering issues only after a final order maintains distinctions between trial and appellate review, respects the traditional role of the trial judge, and promotes formality, completeness, and efficiency." Shearer, 177 A.3d at 855 ..J.C.D. v. A.L.R., 303 A.3d 425, 429-30 (Pa. 2023).
Notwithstanding,
[a] notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.Pa.R.A.P. 905(a)(5). Thus,
interlocutory orders dismissing various parties piecemeal from a lawsuit may not be appealed until the case is concluded as to the final remaining party and the case is therefore resolved as to all parties and all claims. [See Pa.R.A.P. 341(b)(1).] . [A] case may be resolved against the final defendant by [means] other than an order of court, as happens where the case against the sole remaining defendant is discontinued or settled, and a docket entry to the effect that the claim was discontinued or settled may serve to render the prior [orders] final and appealable[.]Burkey v. CCX, Inc., 106 A.3d 736, 738-39 (Pa. Super. 2014) (emphasis added).
Instantly, the trial court's order denying Appellant's motion for leave to amend finally resolved her causes of action against Consulting Defendants. Although an IIED cause of action remained against Noye, Appellant discontinued that action on March 1, 2024. As such, Appellant's appeal is now ripe for our review. See Barnes v. Alcoa, Inc., 145 A.3d 730, 732 (Pa. Super. 2016) (considering a notice of appeal, filed prior to entry of a discontinuance as to the remaining party, timely filed as of the date of the discontinuance); Johnston the Florist, Inc. v. Tedco Constr. Corp. 657 A.2d 511, 514-15 (Pa. Super. 1995) (en banc) (regarding "as done that which ought to have been done" in the interest of judicial economy). Accordingly, we deny Consulting Defendants' motion to quash.
In her first issue, Appellant argues the trial court erred in denying her motion for leave to amend as untimely filed. Appellant's Brief at 33.
Specifically, Appellant claims the trial court miscalculated the 20-day time limit it had previously imposed for filing an amended complaint. Id.
In its January 12, 2024, opinion, the trial court agreed:
[T]he trial court's August 17, 2023[,] order allowing Appellant to file a second amended complaint within twenty days was entered on the docket on August 17, 2023; however, notice was sent out to the parties by the Cambria County Prothonotary on August 18, 2023. This meant the twenty-day time period ended on September 7, 2023, rather than September 6, 2023[,] as the trial court originally believed. Therefore[,] Appellant was correct about the September 7, 2023[,] filing deadline.Trial Court Opinion, 1/12/24, at 4 (capitalization modified). We agree. Accordingly, we review Appellant's remaining issues.
In her remaining issues, Appellant argues the trial court improperly denied her motion for leave to amend as violating the Rules of Civil Procedure. Appellant's Brief at 39. We address these issues together, as they are related.
In her second issue, Appellant argues that, in denying her motion for leave to amend, the trial court failed to construe the Rules of Civil Procedure "liberally," as required by Pa.R.C.P. 126. Appellant's Brief at 39. See Pa.R.C.P. 126. Appellant claims "amendments to complaints should be freely given in the absence of prejudice to the opposing parties." Id. According to Appellant,
numerous cases have held that the refusal to grant a request to amend a complaint after much longer delays is an abuse of discretion. See Biglan v. Biglan, 479 A.2d 1021, 1025 (Pa. Super. 1984) ("as can be seen from the clear language of [Pa.R.C.P.] 1033, no limit is imposed on the time when an amendment may be made.").Id. at 40. Appellant asserts, "there has not been even a suggestion of prejudice, let alone proof of the type of prejudice that is required to deny a request to amend." Id. at 41.
In her third issue, Appellant again argues the trial court improperly denied her motion for leave to amend, because she filed a motion instead of an actual amended complaint. Id. at 42. Appellant asserts that,
although [Appellant] attached an amended complaint to her motion, the trial court rejected the amendment because [Appellant's] motion [for leave to amend] referred to the amendment as a "proposed" amendment.
But the attached amendment was "proposed" because leave to file it had not yet been given. And the [amended complaint] did not contain the word proposed.Id. at 43.
In her fourth issue, Appellant argues the trial court improperly sustained Defendants' preliminary objections with prejudice, as a result of her untimely filing. Id. at 44.
In her fifth issue, Appellant again argues the trial court improperly rejected her September 7, 2023 amended complaint. Id. at 45.
Our standard of review of an order denying leave to amend a complaint
permits us to overturn the order only if the trial court erred as a matter of law or abused its discretion. The trial court enjoys broad discretion to grant or deny a petition to amend. Although the court generally should exercise its discretion to permit amendment, where a party will be unable to state a claim on which relief could be granted, leave to amend should be denied.Pollock v. NFL, 171 A.3d 773, 778 (Pa. Super. 2017) (citation omitted).
Leave to amend "should be liberally granted at any stage of the proceedings unless there is an error of law or resulting prejudice to an adverse party." Hill v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014) (citation omitted). "The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities." Id. (quoting Chaney v. Meadville Med. Ctr., 912 A.2d 300, 303 (Pa. Super. 2006)).
Undue prejudice in this analysis has been defined as something more than a detriment to the other party, as any amendment would likely have the effect of harming the adverse party's interests....Chaney, 912 A.2d at 303 (citations omitted).
Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss a complaint
without leave to amend. There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile.... [However], the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amended pleading..In re Estate of Luongo, 823 A.2d 942, 946 (Pa. Super. 2003) (emphasis in original; internal quotations and citation omitted).
In denying Appellant leave to amend her complaint, the trial court reasoned as follows:
In her motion for leave [to amend], Appellant stated that "[f]or the convenience of the court and [the Consulting Defendants], [Appellant] has attached the proposed Amended Complaint to the instant motion." Motion for Leave, p.5. This "Amended Complaint" may have been the second amended complaint Appellant was allowed to file within twenty days[,] pursuant to this court's August 17, 2023[,] order, but it is unclear that this proposed "Amended Complaint" was meant to be the final iteration of her second amended complaint. Appellant still had not filed any second amended complaint or amended complaint on its own by the hearing held on her motion for leave on October 2, 2023.
... [T]his court's August 17, 2023[,] order allowed Appellant to file a second amended complaint, not a motion asking for leave to amend her complaint. It is not that her motion for leave [to amend] was untimely, it was that she never filed any second amended complaint at all. . [The trial court] correctly denied Appellant's motion for leave to amend . as it was not sufficient on its own as a final second amended complaint as allowed by [the trial court's] August 17, 2023[,] order.Trial Court Opinion, 1/12/24, at 4-5 (capitalization modified). We disagree with the trial court's rationale and conclusion.
In her motion for leave to amend, Appellant sought to amend her complaint under Pennsylvania Rules of Civil Procedure 1033 and 2005(b). Motion for Leave to Amend, 9/7/23, ¶¶ 1-4. Appellant filed the motion for leave to amend not only to comply with the court's August 17, 2023, order, but also to replace as a party Tracy LNU with Krider. See id.
Pennsylvania Rule of Civil Procedure 126 requires our rules of civil procedure to be liberally construed:
(a) Application. The rules shall be liberally applied to secure the just, speedy, and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantive rights of the parties.Pa.R.C.P. 126(a).
Rule 1033 governs amendments to pleadings, and provides that a party, "by leave of court, may at any time change the form of an action, add a person as a party, correct the name of a party, or otherwise amend the pleading." Pa.R.C.P. 1033(a) (emphasis added). However, Rule 1033 places time restrictions for when an amendment "relates back" to the commencement of the action, for statute of limitations purposes:
(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. The amended pleading may aver ransactions 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.
(c) An amendment substituting the actual name of a defendant for a Doe designation as provided in Rule 2005 relates back to the date of the commencement of the action if, within the time provided by Rule 401 for service, the defendant named by the amendment has received actual or constructive notice of the commencement of the action such that it will not be prejudiced in maintaining a defense on the merits and the defendant knew or should have known that the action would have been brought against it but for lack of knowledge of the defendant's actual name.Pa.R.C.P. 1033 (emphasis added).
The explanatory comments to Rule 1033 explain when deadlines may be imposed for an amendment adding parties, stating as follows:
EXPLANATORY COMMENT--2013
Rule 1033 has been amended to specifically state that an amendment may add a person as a party. It is the practice of litigants and trial courts to refer to Rule 1033 when a party seeks to amend a pleading to add another party. The purpose of this amendment is to eliminate any uncertainty as to whether a motion to amend a pleading to add an additional party is governed by Rule 1033....
EXPLANATORY COMMENT--2017
Currently, the Rules of Civil Procedure do not expressly permit an amendment correcting the name of a party against whom a claim is asserted to relate back without a showing of concealment when
the statute of limitations has expired and the effect of that correction operates to add another party. However, case law has interpreted the Rules to permit such an amendment within the statute of limitations. Rule 1033 has been amended to expressly permit amendments correcting the name of the party against whom a claim is asserted to relate back to the date of the commencement of the action if within ninety days after the period provided by law for commencing the action, the party to be brought in by the amendment has received notice of the commencement of the action such that it will not be prejudiced in obtaining 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.Id., cmts. (emphasis added).
Rule of Civil Procedure 2005 addresses the use of "Doe" to designate an unknown defendant:
(b) The plaintiff or joining party may designate an unknown defendant by a Doe designation in a complaint provided that:
(1) a defendant's actual name is unknown to the plaintiff or joining party after having conducted a reasonable search with due diligence;
(2) the Doe designation is averred to be fictitious;
(3) a factual description of the unknown defendant is averred with sufficient particularity for identification; and
(4) the plaintiff or joining party avers that a reasonable search to determine the actual name has been conducted.
(c) Within 20 days after the actual name of the defendant has been identified, the plaintiff or joining party shall file a motion to amend the complaint pursuant to this rule and Rule 1033 by replacing the Doe designation with the defendant's actual name. An affidavit shall be attached to the motion describing the nature and extent of the investigation that was made to determine the
identity of the defendant, and the date upon and the manner in which the defendant's actual name was identified.
Note: Rule 1033 and this rule govern the requirements for amending a complaint to replace a Doe designation with the actual name of a defendant.
(d) The court shall grant a motion to amend filed pursuant to subdivision (c) unless the court finds that the party seeking the amendment failed to exercise due diligence in identifying the actual name of the defendant.Pa.R.C.P. 2005(b)-(d) (emphasis added).
While Rule 2005 requires a "Doe" designation to be replaced within 20 days after discovery of the defendant's actual name, Rule 1033 provides that a pleading may be amended "at any time" to "add a person as a party" or "correct the name of a party." Pa.R.C.P. 1033(a).
Here, Appellant sought not only to amend her complaint in accordance with the trial court's August 17, 2023, order, but to substitute Tracy LNU with Krider's name. Our review discloses Appellant had unsuccessfully attempted this change on prior occasions. Rather than filing an amended complaint with the name change, Appellant prudently sought leave to amend, as is required by Rule 1033. Significantly, the trial court failed to consider whether, by filing a motion for leave to amend rather than an amended complaint, Appellant prejudiced any of the parties. See Hill, 85 A.3d at 557. Our review discloses no subsequent allegations of prejudice resulting from Appellant filing a motion, rather than filing an amended complaint.
Under these circumstances, we conclude the trial court abused its discretion in adopting an overly-strict interpretation of our procedural rules, and denying Appellant leave to file her amended complaint. See Pa.R.C.P. 126 (requiring liberal construction of the rules of civil procedure). Because there are no allegations of prejudice, the trial court improperly denied Appellant's motion for leave to amend. Consequently, Appellant's second, third, fourth, and fifth claims merit relief. We address the extent of that relief in our discussion of Appellant's sixth issue.
We observe that the trial court previously considered and accepted an untimely pleading filed by Noye. Although Noye had filed untimely preliminary objections, the trial court accepted the untimely filing, reasoning as follows:
"Although Rule 1026(a) of the Pennsylvania Rules of Civil Procedure states that all pleadings subsequent to the complaint must be filed within 20 days after service of the preceding pleading, this Rule has been interpreted as permissive rather than mandatory." Gale v. Mercy Cath. Med. Ctr. Eastwick, Inc., Fitzgerald Mercy Div., 698 A.2d 647, 649 (Pa. Super. []1997). "[I]t is within the sound discretion of the trial court to permit a late filing of a pleading where the opposing party will not be prejudiced and justice so requires." Ambrose v. Cross Creek Condominiums, 602 A.2d 864, 868 (Pa. Super. [] 1992).
The rules [of civil procedure] shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.Pa.R.C.P. [] 126.... Trial Court Opinion, 8/17/23, at 4 (capitalization modified). In accepting Noye's untimely preliminary objections, the trial court observed,
[Appellant] has failed to demonstrate prejudice. By way of example, [Appellant] has presented arguments opposing [] Noye's preliminary objections on the merits.Id. Interestingly, the trial court failed to discuss prejudice in ruling on Appellant's motion for leave to amend.
In her sixth issue, Appellant argues that the trial court improperly refused to allow the substitution of Krider's name for "Tracy LNU." Appellant's Brief at 45. Appellant asserts that when she filed her original complaint, she hand-delivered the complaint to Krider's place of employment. Id. Appellant explains that
a Cambria County [D]eputy Sheriff delivered a copy of the complaint to Impact's administrative officer [,] who accepted service on behalf of both Impact and Krider, or Tracy LNU as she was identified in the original complaints.Id. at 45-46 (emphasis added). Appellant details her efforts to determine Krider's name, asserting "it was not until April 26, 2023[,] that the true name of Tracy LNU was disclosed as" Krider. Id. at 46. Appellant claims she filed a motion for leave to amend her complaint on May 31, 2023, but was advised by the prothonotary that a motion was not necessary. Id. at 47. Therefore, Appellant asserts, she filed an amended complaint on June 9, 2023. Id.
Appellant states that on July 21, 2023, during argument on Impact's preliminary objections, Impact challenged only her failure to comply with Pa.R.C.P. 1033. Id. At that time, Appellant made an oral motion for leave of court to amend her complaint, but the trial court did not rule on this motion. Id.
Appellant states she filed a motion for leave to amend her original complaint on July 31, 2023, and Defendants did not object to the motion. Id. Nevertheless, Appellant argues, the trial court denied the motion based on Appellant's failure to comply with Pa.R.C.P. 2005. Id. at 48. Appellant explains she again sought leave to amend, to properly name Tracy LNU as Krider, in her September 7, 2023, motion for leave to amend. Id.
Appellant asserts that, because the trial court deemed her motion for leave to amend untimely, the court never addressed whether the change of name is appropriate under Rule 1033. Id. at 49. Rather, Appellant contends, the trial court denied the motion based upon her purported noncompliance with Rule 2005(c) (requiring a motion for leave to amend to be filed within 20 days after the defendant's name is identified). Id. 51.
Appellant argues that Rule 2005 is not a proper basis for denying substitution under the procedural history of this case. Id. at 55. Appellant asserts that Pa.R.C.P. 1033 permits substitution "at any time," and the Defendants and trial court have failed to reconcile the time limits stated in Rule 2005, with the plain language of Rule 1033. Id. at 55. For this reason, Appellant argues the trial court improperly denied her motion for leave to amend. Id. at 56.
Our review discloses that all conduct alleged against Krider, in Appellant's September 7, 2023, proposed amended complaint, arguably falls within the applicable statutes of limitations. Thus, Rule 1033's relation-back time limits are not applicable. See Pa.R.C.P. 1033(b)-(c) (addressing when an amendment relates back to the original pleading).
Our review further discloses the trial court granted Appellant leave to file an amended complaint addressing any preliminary objections that were sustained without prejudice. However, the trial court's order did not address the name change from Tracy LNU to Krider. See generally Trial Court Order, 8/17/23.
As discussed above, Appellant's motion for leave to amend named Krider as Tracy LNU. Motion for Leave to Amend, 7/31/23, ¶¶ 1-4. Appellant attached to her motion an affidavit stating how and when she discovered Krider's name. Id., Exhibit 1. Appellant claimed Krider provided counseling services under the auspices of Impact. Id., Exhibit 2, ¶¶ 2(c). Appellant attested that Appellant's counsel unsuccessfully sought a copy of Impact's records (which included Krider's name) on February 25, 2023, and from April 17, 2023, through April 21, 2023. Id., ¶ 2(j). Appellant attested that on April 26, 2023, Impact provided Krider's true name. Id. ¶ 2(m).
Since July 31, 2023, there has been no allegation by Defendants, including Krider, of prejudice resulting from naming Tracy LNU as Krider. In fact, the trial court's August 17, 2024, order specifically granted leave to amend other causes of action against Consulting Defendants. Order, 8/17/24.
Here, the interests of justice are served by granting Appellant's motion for leave to amend to replace Tracy LNU with Krider. In so holding, we recognize the similarity of this case to the example described in the 2017 explanatory comment to Rule 1033:
Consider the following example: Harry Roberts, who resides at 949 Alcoma Street, Pittsburgh, PA, was the driver of an automobile which struck the plaintiff when he was crossing the intersection at Grant and Forbes Street, Pittsburgh, PA, at approximately 11:00 a.m. on October 11, 2013. The plaintiff's complaint, filed on October 2, 2015, mistakenly identifies the driver as Henry Rosen. He is the only named defendant in the complaint.
On October 7, 2015, the Sheriff made service by serving Mary Roberts at 949 Alcoma Street, Pittsburgh, PA. She is described in the Sheriff's Return as the wife of the defendant. On January 2, 2016, the complaint is amended to correct "Henry Rosen" to "Harry Roberts."
The amendment of Rule 1033 expressly permits the plaintiff to amend the complaint to correct the name of the defendant to Harry Roberts, because it is clear from the body of the complaint that the plaintiff was suing the driver of the automobile which struck the plaintiff and service of the complaint furnished sufficient notice to Harry Roberts that a lawsuit has been initiated against him for actions he is liable for even though the defendant is identified on the complaint as Henry Rosen. This is consistent with existing case law and codifies current practice.
... The interests of justice are served by a rule of civil procedure permitting a party to correct a complaint that provides an incorrect name of a party when there is no prejudice to the party brought in by the amendment.
The amendment of Rule 1033 does not alter the concealment doctrine and the discovery rule. The amendment is intended to cover situations in which neither the concealment doctrine nor the discovery rule apply.Pa.R.C.P. 1033, Explanatory Comment-2017. Here, Appellant's original complaint alleged a cause of action against Tracy LNU. Complaint, 3/27/23. Appellant alleged Tracy LNU "worked part- time as a counselor and mental health practitioner for Impact." Id. ¶ 6. Appellant alleged that Impact assigned Tracy LNU as Appellant's "treatment counselor." Id. ¶ 17. According to Appellant, at Tracy LNU's direction, Appellant "was required to attend weekly counseling sessions" with Tracy LNU. Id. Appellant averred Tracy LNU "was in constant communication with" Noye. Id. ¶ 19. Thus, as in Rule 1033's example, it is clear from the body of the complaint Appellant was suing the counselor from Impact who had provided services to Appellant.
Keeping in mind that our rules of procedure are to be liberally construed, see Pa.R.C.P. 126(a), and in the absence of any alleged prejudice resulting from the complaint's amendment, we conclude the trial court abused its discretion in denying Appellant's motion for leave to amend. The interests of justice would have been served by permitting Appellant to properly identify Tracy LNU as Krider. See id. For this reason, and the reasons stated in addressing Appellant's second, third, fourth and fifth issues, we reverse the order of the trial court and remand for Appellant to file her proposed second amended complaint. Appellant's amended complaint may substitute Tracy LNU with Krider as a party.
Motion to quash denied. Order reversed. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.
P.J.E. Bender joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.