Opinion
No. 1737 EDA 2009.
Filed: March 4, 2010.
Appeal from the Order entered May 11, 2009 ,In the Court of Common Pleas of Philadelphia County Civil No. May Term 2008, No. 00297.
BEFORE: BOWES, GANTMAN and KELLY, JJ.
¶ 1 Charles Meadows and Terry Bell, Appellants, appeal from the order entered in the Philadelphia County Court of Common Pleas denying their motion to amend their complaint and dismissing the case. We hold that the trial court erred in denying a motion, which clearly sought to join a defendant but was mis-titled a "motion to amend complaint," and which was filed before the statute of limitations had run, where neither the named defendant nor proposed defendant would suffer prejudice. We further hold the court erred in sua sponte dismissing the case where, even if the motion to join a defendant were properly denied, there remained outstanding claims. We reverse and remand.
Although this appeal was originally styled as an appeal from the order entered "May 13, 2009," Appellants' notice of appeal correctly identified the order as filed May 11, 2009. Accordingly, we have amended the caption.
¶ 2 After suffering injuries in a car accident that occurred on May 1, 2007, Appellants initiated a personal injury suit on May 6, 2008 against Appellee, whom Appellants believed was the owner and operator of the other vehicle. In discovery, Appellants learned that another person, N.C., may have been the driver. Accordingly, on March 26, 2009 Appellants filed a "Motion to Amend the Complaint" seeking to add N.C. as a defendant and averring that: (1) for judicial efficiency, Appellants did not want to initiate a separate suit against N.C.; (2) the statute of limitations had not yet run; and thus (3) Appellee could not claim prejudice.
¶ 3 The trial court denied the motion on April 21. The next entry on the docket is a May 11th order discontinuing the matter and marking it "disposed." (Order, 5/11/09). Appellants filed a motion for reconsideration. The court denied it on the basis that it could not treat the motion to amend the complaint as a motion to join a defendant because it failed to show "a reasonable justification for the delay in moving to add the additional defendant," and because "there was time to file a separate complaint against the proposed additional defendant within the statute of limitations." (Order, 6/4/09 at n. 1). Appellants filed a timely notice of appeal.
This order was filed June 4, 2009, subsequent to Appellants' filing of a notice of appeal, and thus while the trial court was without jurisdiction to take any action. See Pa.R.A.P. 1701(b); R.W.E. v. A.B.K., 961 A.2d 161, 170 (Pa. Super. 2008) ( en banc) (stating trial court has no jurisdiction to proceed in matter from time appeal is taken until this Court remands record back to trial court). Nevertheless, we refer to this order for the court's reasoning in support of its rulings.
¶ 4 We first address the issue of Appellants' service of its notice of appeal. In their certificate of service, Appellants stated that it served the notice of appeal on the trial court and opposing counsel "via electronic mail and/or first class mail." (Certificate of Service, Notice of Appeal, 4/22/09). The trial court then filed a memorandum opinion dedicated solely to the suggestion that this appeal should be quashed for Appellants' failure to serve on it a copy of their notice of appeal. (Memorandum Opinion, 6/23/09).
The trial court also noted that on June 30, 2009, the same date as its memorandum opinion, it had received by mail from Appellants' counsel an unsigned cover letter, dated June 2, 2009 and "not copied to opposing counsel," with a certificate of service. (Order, docketed 7/1/09). The order "judicially estopped" Appellants from repudiating the statement in their certificate of service that they served the notice of appeal electronically on the court. ( Id.). To the extent that Appellants had attempted to serve the notice of appeal by U.S. mail, as noted above, Rule of Appellate Procedure 906(a)(2) clearly requires service of the notice of appeal to be filed concurrently with the notice of appeal. As to electronic service, Pennsylvania Rule of Civil Procedure 204.4, "Electronic Filing and Service of Legal Papers," provides that "[a] court by local rule may permit or require electronic filing of legal papers with the Prothonotary." Pa.R.C.P. 204.4(a)(1). Electronic filings are allowed in Philadelphia County through the website of the First Judicial District. See Phila.R.C.P. 205.4. However, while the trial court docket includes an entry that the notice of appeal was filed, there is no corresponding certificate of service.
The order was dated June 30, 2009 and stamped "docketed" as of July 1, 2009.
¶ 5 Rule of Appellate Procedure 906(a)(2) provides: "Concurrently with the filing of the notice of appeal . . . the appellant shall serve copies thereof" upon "[t]he judge of the court below." Pa.R.A.P. 906(a)(2). While the rule is silent as to what consequences would follow a failure to serve the judge, Rule 902 provides in pertinent part:
Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.
Pa.R.A.P. 902 (emphasis added). Id. Accordingly, pursuant to Rule 902, we decline to quash the instant appeal.
In light of the procedural transgressions counsel has committed with respect to both the mischaracterization of the motion to join a defendant and with the service of the notice of appeal, we can understand the trial court's dim view of counsel's advocacy. Nevertheless, in light of the clear statement in Rule 902 that failure to serve properly the notice of appeal does not affect the validity of the appeal, we will not quash this appeal. See Pa.R.C.P. 902.
¶ 6 We now review the issue Appellants raise on appeal, that the court erred in denying their motion to amend the complaint. They reiterate that the statute of limitations had not run at the time they filed the motion, and thus, Appellee was not prejudiced. They further reason that Appellee's failure to file an answer to the motion indicated "tacit consent of the motion." (Appellants' Brief, at 10). Appellants also aver that Appellee was not prejudiced by any procedural defect in filing a motion to amend the complaint instead of a motion to join a defendant.
¶ 7 Appellants rely on Pennsylvania Rule of Civil Procedure 1033, which provides:
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. The amended pleading may aver transactions 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.
See Pa.R.C.P. 1033. Because Appellants sought to add N.C. as a defendant based on his possible status as the driver of the other vehicle, we agree that a motion to join a defendant would have been the correct pleading.
Pennsylvania Rule of Civil Procedure 2252(a) provides:
(a) Except as provided by Rule 1706.1, any party may join as an additional defendant any person not a party to the action who may be
(1) solely liable on the underlying cause of action against the joining party, or
¶ 8 However, while Appellants' pleading was designated a "Motion to Amend the Complaint," the body of the motion, comprised of ten one-sentence paragraphs, clearly stated their intention to add N.C. as a defendant. Specifically, Appellants averred that they learned that N.C. "may have also been acting individually and/or by and through all lessees, agents, servants, workmen, and/or employees, including co-defendant [Appellee] in causing" the car accident, and that they could have filed a separate lawsuit for bodily injury against N.C. and then a motion to consolidate the two actions, but in the interests of judicial efficiency, sought leave to amend. (Appellants' Motion to Amend Complaint, filed 3/26/09, at ¶¶ 3, 6-7). The motion raised no additional causes of action against Appellee. Accordingly, the initial issue before the trial court was whether the mis-designation of the pleading could be overlooked.
¶ 9 Pennsylvania Rule of Civil Procedure 126, cited by Appellants, provides:
The rules 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.
See Pa.R.C.P. 126. The statute of limitations for a personal injury claim is two years. See 42 Pa.C.S.A. § 5524(2), (7). Appellants thus had until May 1, 2009 to initiate suit for injuries suffered in the car accident. We agree with Appellants that their attempt on March 26, 2009 to add N.C. as a defendant, when the statute of limitations had not run, would cause no prejudice to Appellee nor N.C. In denying the motion, the trial court reasoned that Appellants had failed to "show[] a reasonable justification for the delay in moving to add the additional defendant," ( see Order, 6/4/09, at n. 1) (emphasis added). However, it did not identify the nature of the "delay." In addition, the court found, in the following sentence, that "there was also time to file a separate complaint against the proposed additional defendant within the statute of limitations after the Court denied the Motion to Amend." ( Id.). Moreover, Appellants did raise issues concerning timeliness in their motion, stating that the statute of limitations had not run and that they were filing the motion in lieu of a separate complaint against N.C. to promote judicial efficiency.
¶ 10 Although there is no statute or case authority addressing a similar situation, in light of Rule 126 we find that because the statute of limitations had not expired and thus neither Appellee's nor N.C.'s rights would be affected, the court erred in denying Appellants' motion to amend on the basis that the title of the motion was incorrect. Instead, we find the court should have considered the merits of the motion, or sua sponte granted leave to correct it. We thus reverse the order denying the motion.
¶ 11 In addition, we find no proper basis on which the trial court could have discontinued the matter. Appellee had filed an answer and new matter to which Appellants first filed a reply and then moved to join N.C. Neither party moved for summary judgment or similar relief before the court sua sponte discontinued the case. Thus, even if Appellants' motion to join N.C. were properly denied, their claims against Appellee, as well as Appellee's new matter, remained unresolved. Accordingly, we vacate the order discontinuing the suit.
¶ 12 Order denying Appellants' motion to amend the complaint and discontinuing matter reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.
¶ 13 Gantman, J. concurs in the result.
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(4) liable to or with the joining party on any cause of action arising out of the transaction or occurrence or series of transactions or occurrences upon which the underlying cause of action against the joining party is based.
Pa.R.C.P. 2252(a)(1), (4).