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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LAWRENCE PAUL PINNO, JR.               :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
              v.                        :
                                        :
                                        :
 BLAISE ALEXANDER FAMILY                :
 DEALERSHIPS, ALEXANDER BUICK           :
 CADILLAC GMC, AND RICHARD C.           :   No. 209 MDA 2020
 ORTLIP, IV                             :
                                        :
                                        :
 APPEAL OF: NANCY J. YEAGER,            :
 EXECUTRIX OF THE ESTATE OF             :
 LAWRENCE P. PINNO, JR.,                :
 DECEASED

              Appeal from the Order Entered January 2, 2020
 In the Court of Common Pleas of Northumberland County Civil Division at
                          No(s): CV-2014-1487

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                       FILED OCTOBER 05, 2020

      Nancy J. Yeager (Appellant), executrix of the estate of Lawrence P.

Pinno, Jr. (Pinno), appeals from the order granting Blaise Alexander Family

Dealerships’, Alexander Buick Cadillac GMC’s, and Richard C. Ortlip, IV’s

(Ortlip) (collectively, Appellees) motion for summary judgment. Upon review,

we reverse the order granting summary judgment in favor of Appellees and

remand this matter to the trial court for proceedings consistent with this

decision.

      On October 26, 2012, Pinno purchased a pre-owned 2005 Ford Mustang

(the Mustang) from Alexander Buick Cadillac GMC, a car dealership located at
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800 Market Street, Sunbury, Northumberland County, Pennsylvania. Ortlip

was the salesperson who sold Pinno the Mustang.         During the process of

purchasing the Mustang, Pinno informed Ortlip that he did not want to buy a

vehicle that was damaged or had been in an accident. Ortlip assured Pinno

that the Mustang had a clean history and gave Pinno a vehicle history report

that showed the vehicle had not been in any accidents or otherwise damaged.

       Following his purchase of the Mustang, Pinno began to suspect that it

had sustained pre-sale damage. Pinno took the Mustang to several local body

shops, each of which advised Pinno that the Mustang had been in at least one

accident prior to his purchase of the vehicle. Consequently, Pinno returned to

Alexander Buick Cadillac GMC to address the condition of the Mustang at the

time of sale.   Alexander Buick Cadillac GMC showed Pinno a clean Carfax

history report for the Mustang. Blaise Alexander Family Dealerships also sent

a mechanic from its headquarters to conduct another inspection of the

Mustang. The mechanic claimed that this inspection did not reveal any pre-

sale accidents, damage, or repairs.

       On October 21, 2013, Pinno filed a complaint against Appellees in the

Philadelphia County Court of Common Pleas.        Pinno raised several claims

against Appellees, including, inter alia, fraud, breach of contract, negligence,

negligent misrepresentation, breaches of express and implied warranties, and

violations of the Pennsylvania Unfair Trade Practices and Consumer Protection

Law.    Generally, Pinno alleged that at the time of purchase, Appellees


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represented that the Mustang was in good, safe and operable condition, free

of defects, and had not been in any accidents or sustained any damage. Pinno

further alleged that additional inspections of the vehicle revealed that prior to

the sale, the Mustang had been in at least one accident, had sustained frame

and other structural damage, and was not in good, operable, or safe condition.

       On August 19, 2014, the case was transferred to the Northumberland

County Court of Common Pleas.             On October 8, 2014, Appellees filed an

answer with new matter.          Importantly, Appellees averred that the proper

corporate defendant in this matter was not Blaise Alexander Family

Dealerships or Alexander Buick Cadillac GMC, but rather Alexander Pontiac-

Buick-Cadillac-GMC Truck, Inc.

       On April 22, 2019, Appellees filed a motion for summary judgment.1

Appellees argued that, inter alia, the trial court should grant summary

judgment in its favor because Blaise Alexander Family Dealerships was not

involved “in any aspect of the . . . sale of the Mustang to [Pinno].” Appellees’

Motion for Summary Judgment, 4/22/19, ¶ 34. Appellees further asserted

that Ortlip was entitled to summary judgment because “[t]here is no evidence

of record that [Ortlip] did anything in his individual capacity that would impose

liability on him individually.”

Id. ¶ 40.

Notably, Appellees did not argue in

their motion that summary judgment was appropriate because Pinno failed to


____________________________________________


1 On November 5, 2016, Pinno died. The docket indicated that Appellant was
substituted as the plaintiff on May 10, 2019.

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name the correct corporate defendant in the complaint or that Alexander Buick

Cadillac GMC was entitled to summary judgment because Pinno did not

correctly identify defendant as Alexander Pontiac-Buick-Cadillac-GMC Truck,

Inc.

       On January 2, 2020, the trial court granted Appellee’s motion for

summary judgment.      The sole basis for summary judgment was the trial

court’s determination that Pinno failed to name the appropriate corporate

entity (Alexander Pontiac-Buick-Cadillac-GMC Truck, Inc.) as a defendant.

The trial court explained:

       1. There are no entities by the names of Defendants Blaise
          Alexander Family Dealership[s] or Alexander Buick Cadillac
          GMC that can be parties to a suit, i.e. a corporation,
          partnership, or sole proprietorship.

       2. In paragraph two of the Complaint, Defendant, Blaise
          Alexander Family Dealerships[] is incorrectly identified as a
          “corporation licensed to do business in the Commonwealth of
          Pennsylvania.”

       3. In paragraph three of the Complaint, Defendant Alexander
          Buick Cadillac GMC is identified as a “management level
          employee of Blaise Alexander Family Dealership.”

       4. In paragraph four of the Complaint, Defendant Richard C.
          Ortlip, IV is identified as an “employee of Blaise Alexander
          Family Dealership.”

       5. [Pinno] was apprised by way of [Appellees’] Answer with New
          Matter, in paragraph 1, filed on October 18, 2014, that the
          proper party to this transaction was Alexander Pontiac-Buick-
          Cadillac-GMC Truck, Inc.

       6. At no time has [Pinno] sought leave of this Court pursuant to
          Pa.R.C.P. 1033 to amend the caption and to add the actual
          corporation involved in this transaction as a party.

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      7. There are no entities presently before the court named as
         Defendants that are legally in existence subject to suit, other
         than the individual, Richard C. Ortlip, IV.

      8. [Ortlip]’s liability is predicated upon his role as an employee;
         however, his corporate employer at the time has never been
         added as a party to this matter.

      9. There is not any proper party [d]efendants to this action, and
         the applicable limitations of action have long expired.

Trial Court Order, 1/2/20, at 1-2.

      On January 30, 2020, Appellant filed a timely notice of appeal. Both the

trial court and Appellant have complied with Pennsylvania Rule of Appellate

Procedure 1925. Notably the trial court in its opinion agrees with remand. In

its Rule 1925(a) opinion, the trial court admitted that it “did not consider Rule

2176 as to the definition of a corporate name[,]” and stated that the “best

course is for a remand for counsel to file any motions deemed appropriate for

further consideration of the issues[.]” Trial Court Opinion, 3/4/20, at 1-2. We

agree.

      Appellant states the issues as follows:

      1.     Should this Court find that [the trial court] committed and
      an error of law and an abuse of discretion when it went outside
      and beyond [Appellees’] Summary Judgment Motion and held that
      plaintiff had not properly identified or named or prosecuted the
      defendants, where they were identified, described and prosecuted
      under a name under which they indisputably conducted business,
      namely Blaise Alexander Family Dealership and/or Alexander
      Buick Cadillac GMC (names used by defendants on the purchase
      contract), or individually, namely Ortlip – and there was no
      prejudice and/or the Defendant – Appellees waived the issue.




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      2.     Should this Court find the [trial court] committed and an
      error of law and an abuse of discretion when it went outside and
      beyond [Appellees’] Summary Judgment Motion and held that
      plaintiff had not properly identified or named or prosecuted the
      individual defendant Richard C. Ortlip, IV, because he was
      identified or described as an employee of another allegedly
      improperly named party or parties, where, nevertheless, Ortlip
      was alleged to have personally formulated, directed, concealed,
      controlled, conspired, substantially assisted, enabled and/or
      participated in the alleged misconduct – and there was no
      prejudice and/or the Defendant – Appellees waived the issue.

Appellant’s Brief at 6-7.

      We address both of Appellant’s issues together, as they are related. Our

standard of review regarding a trial court’s decision to grant or deny summary

judgment is as follows:

         A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law or
      abused its discretion. As with all questions of law, our review is
      plenary.

         In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment
      may be entered. Where the non-moving party bears the burden
      of proof on an issue, he may not merely rely on his pleadings or
      answers in order to survive summary judgment. Failure of a non[-
      ]moving party to adduce sufficient evidence on an issue essential
      to his case and on which it bears the burden of proof establishes
      the entitlement of the moving party to judgment as a matter of
      law. Lastly, we will view the record in the light most favorable to
      the non-moving party, and all doubts as to the existence of a
      genuine issue of material fact must be resolved against the
      moving party.

Thompson v. Ginkel, 

95 A.3d 900

, 904 (Pa. Super. 2014).




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      Appellant argues that the trial court erred in granting summary

judgment on the basis that Pinno wrongly named Blaise Alexander Family

Dealerships and Alexander Buick Cadillac GMC as defendants.             Appellant

asserts that, even assuming that the appropriate corporate defendant in this

matter was Alexander Pontiac-Buick-Cadillac-GMC Truck, Inc., the decision to

name Blaise Alexander Family Dealerships and Alexander Buick Cadillac GMC

as defendants was appropriate because Appellees used these names on the

purchase contract for the Mustang.

      Pennsylvania Rule of Civil Procedure 1033 provides in pertinent part as

follows:

      (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 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.

Pa.R.C.P. 1033(a) (emphasis added).

      This Court has summarized the following with respect to Rule 1033:

         It is “beyond peradventure that leave to amend pleadings has
      traditionally been liberally granted in this jurisdiction.” Biglan v.
      Biglan, 

479 A.2d 1021

, 1025 (Pa. Super. 1984) (citations
      omitted); see Pa.R.C.P. 126. As can be seen from the clear
      language of Rule 1033, no limit is imposed on the time when an
      amendment may be made. Thus, “[p]leadings may be amended
      at the discretion of the trial court after pleadings are closed, while
      a motion for judgment on the pleadings is pending, at trial, after
      judgment, or after an award has been made and an appeal taken
      therefrom.”

Id. at 1025-26

(emphasis added) (citing Sheppard
      v. First Pa. Banking & Tr. Co., 

184 A.2d 309

, 311 (Pa. Super.

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     1962)); see also Keller v. R.C. Keller Motor Co., 

124 A.2d 105

,
     106 (Pa. 1956) (noting that pleadings may be amended at any
     stage of the proceedings); Trabue v. Walsh, 

177 A. 815

, 816
     (Pa. 1935) (“Pleadings may be amended at any state of the
     case.”).

         As we explained in Biglan, “[t]he fundamental purpose of this
     rule is to prevent cases from turning on purely technical defects.
     . . . [H]ypertechnicality and formalism in pleading are contrary to
     modern practice of allowing free amendment in order to promote
     resolution of cases on their merits.” 

Biglan, 479 A.2d at 1026

     (citations omitted).      Nonetheless, a trial court may deny
     amendment of pleadings if there is resulting prejudice or surprise
     to the adverse party.

Id. “[P]rejudice, in turn,

must be more
     than a mere detriment to the other party because any amendment
     requested certainly will be designed to strengthen the legal
     position of the amending party and correspondingly weaken the
     position of the adverse party.” MacGregor v. Madiq Inc., 

576 A.2d 1123

, 1126 (Pa. Super. 1990) (citation omitted).            In
     Capobianchi v. BIC Corp., 

666 A.2d 344

(Pa. Super. 1995), we
     noted that prejudice sufficient to deny amendment of the
     pleadings “must be more than a mere detriment to the other
     party[.]”

Id. at 346.

The “fact that the adverse party has
     expended time and effort in preparing to try a case against the
     amending party is not such prejudice as to justify denying the
     amending party leave to amend[.]”

Id. (citation omitted). Indeed,

“[d]enial of a petition to amend, based on nothing more
     than unreasonable delay, is an abuse of discretion.”

Id. at 347

     (citation omitted). However, under the current language of Rule
     1033, pleadings may not be amended to correct a party’s name if
     more than 90 days have passed since the expiration of the statute
     of limitations. See Pa.R.C.P. 1033(b).

Thom v. CDM Auto Sales, 

221 A.3d 681

, 684-85 (Pa. Super. 2019) (citations

modified; footnotes omitted).

     The Rule further states:

     (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

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     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.

Pa.R.C.P. 1033(b).

     This Court has explained:

        Pennsylvania Rule of Civil Procedure 1033 provides that a
     party, by consent or leave of court, “may at any time change the
     form of action, correct the name of a party or amend his pleading.”
     Pa.R.C.P. 1033. However, amendment of a complaint after the
     statute of limitations has expired will not be permitted where the
     amendment attempts to bring a new party into the action.
     As our Court has stated in a prior case:

            A plaintiff may not add a new defendant after the
        applicable statute of limitations has expired. Hoare v. Bell
        Tel. Co. of Pa., 

500 A.2d 1112

(Pa. 1985); Zercher v.
        Coca–Cola USA, 

651 A.2d 1133

(Pa. Super. 1994). Thus,
        in cases where the statute of limitations has expired and a
        party seeks to amend its pleading to correct the name of
        party, the issue is whether the proposed amendment adds
        a new party to the litigation or merely corrects a party
        name. Jacob’s Air Cond. v. Assoc. Heating, 

531 A.2d 494

, 496 (Pa. Super. 1987). “If an amendment constitutes
        a simple correcting of the name of a party, it should be
        allowed, Wicker v. Esposito, 

457 A.2d 1260

(Pa. 1983),
        but if the amendment in effect adds a new party, it should
        be prohibited. Cianchetti v. Kaylen, 

361 A.2d 842

(Pa.
        Super. 1976).” Jacob’s Air Cond. v. Assoc. 

Heating, supra

, 531 A.2d at 496. Zercher v. Coca-Cola USA,
        

supra, 651 A.2d at 1135

. If the proper party was sued but
        under the wrong designation, the correction will be allowed.
        However, where the wrong party was sued and the
        amendment is designed to substitute another,
        distinct party, it will be disallowed. Hamilton v.
        Bechtel, 

657 A.2d 98

(Pa. Super. 1995).

     Anderson Equipment Co. v. Huchber, 

690 A.2d 1239

, 1241
     (Pa. Super. 1997) (footnote omitted).




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Ferraro v. McCarthy-Pascuzzo, 

777 A.2d 1128

, 1132-33 (Pa. Super. 2001)

(emphasis added; citations modified).

      Thus, the test courts have employed to determine if an amendment is

permissible after the expiration of the statute of limitations is whether the

plaintiff sued the correct party, but under the wrong name, or whether the

plaintiff sued the wrong party and sought to name another party. See

id. Regarding actions against

corporate entities, we have stated:

      Rule 2177 of the Pennsylvania Rules of Civil Procedure states that
      an action shall be prosecuted against a corporation or similar
      entity in its corporate name. A corporate name is defined as any
      name, real or fictitious, under which a corporation or similar entity
      was organized or conducts business, whether or not such name
      has been filed or registered.

Zercher v. Coca-Cola USA, 

651 A.2d 1133

, 1135 (Pa. Super. 1994)

(emphasis added) (citing Pa.R.C.P. 2176); see also Pa.R.C.P. 2177.

      Here, the record indicates equivocally that Appellees conducted business

under the names Blaise Alexander Family Dealerships and Alexander Buick

Cadillac GMC, because the purchase order for the sale of the Mustang explicitly

names both entities.    Appellees’ Brief in Support of Motion for Summary

Judgment, 4/22/19, Exhibit I. Thus Pinno sued the correct parties, but under

the wrong corporate name. See 

Ferraro, 777 A.2d at 1132-33

; see also

Zercher, 651 A.2d at 1135

; Pa.R.C.P. 2176, 2177. Since the incorrect naming

of the corporate defendant was the sole basis for granting summary judgment

as to each of the appellees, the trial court erred. Pursuant to Rule 1033(a),

the appropriate action in this case would be to permit Appellant to amend the

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pleadings to name Alexander Pontiac-Buick-Cadillac-GMC Truck, Inc. as a

defendant. See

id. We point out

that summary judgment was also inappropriate because

Appellees did not argue in their motion that Pinno named the wrong corporate

entities in his complaint. Our Supreme Court has stated, “[f]or a trial court

to raise an argument in favor of summary judgment sua sponte and grant

summary judgment thereon risks depriving the court the benefit of advocacy

on the issue, and depriving the parties the opportunity to be heard.” Yount

v. Pa. Dep’t of Corrs., 

966 A.2d 1115

, 1119 (Pa. 2009). For this reason as

well, we reverse the trial court’s grant of summary.

      Accordingly, we reverse the order granting summary judgment and

remand this matter to the trial court for proceedings consistent with this

decision.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/05/2020




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