How To Correct The Wrong Name of a Party As Listed in a Writ of Summons

 In the case of Surefire Dividend Capture, L.P. v. The PNC Fin. Serv. Group, Inc., No. 1222 WDA 2023 (Pa. Super. March 10, 2025 Olson, J., Murray, J., and Bender, P.J.E.) (Op. by Olson, J.), the Superior Court vacated a trial court’s Order permitting an amendment to a Writ of Summons to change the name of the Defendant. The court concluded that, Pa. R.C.P. 1033, by its expressed terms, applied only to pleadings and a Writ of Summons was not a pleading under Pennsylvania Rules of Civil Procedure 1017.

According to the Opinion, the Plaintiffs began a lawsuit against certain Defendants. Thereafter, the Plaintiffs filed a Motion to Amend pursuant to Pa. R.C.P. 1033 to amend their Writ of Summons to correct the name of one of the Defendants.

Rule 1033(a) provides, in pertinent part, that “[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 the party, or otherwise amend the pleading.”

In this case, the court emphasized that the Plaintiffs had not yet filed a Complaint.

The Defendants opposed the motion claiming that the rule did not allow a party to amend a Writ of Summons and thereby add an entirely new party as a Defendant.

The Superior Court ruled the pertinent Pennsylvania Rules of Civil Procedure and concluded that a Writ of Summons is not a pleading.

The court also noted that Rule 1033 was amended in 2014 such that it no longer allowed, and could no longer be construed to permit, the correction of the name of a party in a Writ of Summons.

The Superior Court noted that the Plaintiff’s objective could be accomplished under Pa. R.C.P. 229 by discontinuing the current action and beginning a new lawsuit. The court also noted that, under Pa. R.C.P. 1033, the Plaintiff could amend the caption of a later pleading by agreement of the party or by leave of court. It was also noted that the Plaintiff could, under Pa. R.C.P. 2232, seek leaving of court for an Order to join a Defendant.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “The Legal Intelligencer State Appellate Case Alert,” www.Law.com (March 25, 2025).

Source of image:  Photo by Poppy Thomas Hill on www.pexels.com.

Judge Nealon of Lackawanna County Reviews the Current Status of the Law in Pennsylvania on Proper, Timely Service of Process

In the case of Doherty v. Burnham, No. 2024-CV-3829 (C.P. Lacka. Co. March 24, 2025 Nealon, J.), the court denied a Defendant’s Preliminary Objections in the nature of a demurrer seeking to dismiss a premises liability action on the grounds that the Plaintiffs failed to effectuate service of original process prior to the expiration of the applicable statute of limitations.

According to the Opinion, this matter arises out of a slip and fall event that occurred on July 3, 2022. The Plaintiffs commenced this lawsuit by filing a Writ of Summons on June 11, 2024, which was about a month before the statute of limitations expired.

The Plaintiff delivered the original process to the Lackawanna County Sheriff to be served. The Sheriff filed a Return of Service indicating that he was unable to serve the Defendant at the address provided given that the Defendant no longer resided at that address.

At that point, the Plaintiff’s attorney immediately undertook efforts to locate the Defendant’s current address. Once the Plaintiff’s attorney discovered the new address for the Defendant, Plaintiff's counsel reissued the Writ of Summons and re-delivered the Writ to the Sheriff for service. This Defendant was then served on August 21, 2024.

In the Preliminary Objections, the Defendants asserted that the Plaintiff failed to serve the Defendant within the thirty (30) day time period required by the Rules of Civil Procedure and given that service of process was not completed until after the expiration of the statute of limitations. The court noted that, in this case, forty-nine (49) days had passed between the expiration of the statute of limitations and the date service was completed.

The Plaintiffs countered with the argument that they exercise diligent efforts to complete service of process. The Plaintiffs also noted that they properly reissued the Writ of Summons and had additionally notified the Defendant’s carrier of the commencement of the suit by Writ.

In his Opinion, Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas provide a thorough recitation of the current status of Pennsylvania law relative to the proper completion of service of original process.

After reviewing that law and applying the same to the facts before him, Judge Nealon ruled that the Plaintiffs had presented evidence that they had diligently attempted to complete service in a timely fashion and that the Plaintiff did not engage in any conduct evincing any intent to stall the judicial machinery the Plaintiff had put in place by filing suit.

As such, the Defendant’s Preliminary Objections were overruled.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Scranton Judge’s Ruling Clarifies Efforts Plaintiffs Must Undergo To Serve Defendants on Time,” By Aleeza Furman of The Legal Intelligencer (March 25, 2025).

HEADS UP!! THIS WEDNESDAY, APRIL 23, IS ADMINISTRATIVE PROFESSIONALS DAY

 

This Wednesday, April 23, is Administrative Professionals Day, day to celebrate and say thanks to those who help us to keep it all together and moving forward.

Source of image:  Photo by George Dolgikh on www.pexels.com.

Federal Court Addresses Whether Nationwide's "One Product" Policy is a New Policy or a Renewal Policy

In the case of McGuire v. Nationwide Aff. Ins. Co. of America, No. 2:23-CV-01347-NR (W.D. Pa. March 6, 2025 Ranjam, J.), the court denied the carrier’s Motion for Reconsideration of the court’s previous decision relative to a UM/UIM coverage issue.

With this decision denying the carrier’s Motion for Reconsideration, the court maintained its previous position on whether Nationwide’s “One Product” policy was a new policy or a renewal of a prior policy.

In the court’s eyes, several of the “clarifications” in the One Product policy amounted to changes that reduced the amount of coverage from the prior policy. In light of this, the court ruled that the One Product policy could not be considered to be a “renewal” policy.

Rather, the court found that the purchase of a One Product policy amounted to the purchase of a new policy and that, therefore, under Pennsylvania law, Nationwide was required, as with any other purchase of UM or UIM coverage, to provide its insureds with a new stacking waiver form to execute under 75 Pa. C.S.A. §1738(c).

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm Schmidt Kramer for bringing this decision to my attention.

UPCOMING CLE FOR YOUR CONSIDERATION

 I thank Harris Bock for inviting me to present at his famous annual CLE this year.

I will be presenting an update on notable court decisions and trends in Pennsylvania personal injury litigation matters over the past year or so as highlighted on my Tort Talk Blog (www.TortTalk.com).

Need CLE credits?

Please consider registering for this seminar at which you can attend via Zoom on April 24, 2025.  The spots for live, in-person attendance have been sold out.

Thanks for considering -- hope to see you there.

 

GOLF TOURNAMENT AND/OR CLE -- PLEASE SUPPORT LACKAWNNA PRO BONO

 

Zero Verdict For Pain and Suffering Sent Back Down For a New Trial

In its non-precedential decision in the case of Banasiak v. Robinson, No. 2041 EDA 2023 (Pa. Super. Feb. 24, 2025 Olson, J., Dubow, J., and Lane, J.) (Op. by Olson, J.), the Superior Court sent a zero verdict case back down the appellate ladder for a new trial.

According to the Opinion, the Plaintiff was run over by the Defendant’s truck and eventually had to have a leg amputated.

At trial, a jury awarded the Plaintiff his medical expenses but award zero for pain and suffering.

The appellate court ruled that the zero award for pain and suffering was against the weight of the evidence. The court also found that the zero award to the Plaintiff’s wife for loss of consortium was likewise against the weight of the evidence.

Here, the court confirmed that the Defendant did not offer any expert evidence contesting the causation of the Plaintiff’s injury. The Superior Court also reiterated the rule of law that a jury cannot disregard an obvious injury.

The court found that there was no reasonable basis for the jury to believe either that the Plaintiff did not suffer pain or that the Plaintiff's pain was not caused by the Defendant’s negligence.

As such, the case was remanded to the trial court for a new trial.

Anyone wishing to review a copy of this non-precedential decision may click this LINK.


I send thanks to Attorney James M. Beck of the Reed Smith office in Philadelphia for bringing this case to my attention.