1933 Proposed amendment of Rule 1033 governing amendments and Rule 2232 governing defective joinder; proposed recommendation no. 256

Title 231—RULES OF
CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CHS. 1000 AND 2220 ]

Proposed Amendment of Rule 1033 Governing Amendments and Rule 2232 Governing Defective Joinder; Proposed Recommendation No. 256

[42 Pa.B. 6244]
[Saturday, October 6, 2012]

 The Civil Procedural Rules Committee proposes that Rules of Civil Procedure 1033 governing amendments and 2232 governing defective joinder be amended as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania. All communications in reference to the proposed recommendation should be sent no later than November 6, 2012 to:

Karla M. Shultz
Counsel
Civil Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg PA 17106-2635
FAX [phone]
[e-mail]

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1000. ACTIONS

Subchapter A. CIVIL ACTION

PLEADINGS

Rule 1033. Amendment.

 (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, change a party against whom a claim is asserted, add a person as a party, correct the name of a party, or otherwise amend [his] 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.

 (b) An amendment changing the party against whom a claim is asserted relates 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 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.

 Official Note: Notice shall include informal knowledge of the action and is not limited to the service of original process.

CHAPTER 2220. JOINDER OF PARTIES

Rule 2232. Defective joinder; change of parties.

*  *  *  *  *

 (b) [Joinder of unnecessary parties is not ground for dismissal of an action. After notice to all other parties, a party may be dropped by order of the court whenever the party has been misjoined or no claim for relief is asserted against the party in the action by any other party.] Rescinded.

*  *  *  *  *

Explanatory Comment

 The Civil Procedural Rules Committee is proposing the amendment of the Rule 1033 and the rescission of subdivision (b) of Rule 2232.

I.

 Currently, the Rules of Civil Procedure and case law do not permit an amendment changing the party against whom a claim is asserted to relate back without a showing of concealment when the statute of limitations has expired. Rule 1033 is being amended to expressly permit amendments changing the party against whom a claim is asserted to provide for such amendments 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.

 Consider the following example: An accident occurs on March 30, 2010. A complaint is filed on March 26, 2012 and service is made on April 16, 2012. The complaint mistakenly identifies the driver who allegedly caused the accident as Robert Young of 2012 Fifth Avenue. However, the actual driver is Richard Young, who is Robert Young's eighteen-year-old son and resides with him at 2012 Fifth Avenue. As a result of the service of the complaint, Richard Young is aware of the action, that he should have been named as the defendant, and that the complaint mistakenly identifies his father as the driver.

 Under the current Pennsylvania Rules of Civil Procedure and case law, the statute of limitations would bar a court from permitting the plaintiff to file an amended complaint changing the party against whom the plaintiff asserted his personal injury claim. The proposed amendments to Rule 1033 would permit the plaintiff to amend the complaint to change the party to Richard Young because within ninety days after the expiration of the statute of limitations, he received notice of the commencement of the action such that he will not be prejudiced in maintaining a defense on the merits and he knew that but for a mistake on the part of the defendant, the action would have been brought against Richard.

 The Federal Rules of Civil Procedure and a majority of states have rules of procedure governing the relation back of amendments, which are similar to those in this proposed recommendation. The Committee unanimously favors the promulgation of this proposed amendment because the interests of justice are served by a rule of civil procedure permitting a party to correct a complaint that mistakenly names the wrong party when there is no prejudice to the party brought in by the amendment.

II.

 Rule 1033 is being 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. There is no conflict between this proposed amendment and Rule 2232(c) because the latter addresses the question of when a court may order the joinder of any additional person.

III.

 The Committee is proposing the rescission of subdivision (b) of Rule 2232 addressing the joinder of an additional party. The provision is unnecessary because if a party has been misjoined or no claim for relief is asserted, a dismissal should be sought through the rules governing preliminary objections, judgment on the pleadings, and summary judgment. If a plaintiff wants to drop a defendant, it should use the rules governing the discontinuance of an action.

By the Civil Procedural
Rules Committee

DIANE W. PERER, 
Chair

[Pa.B. Doc. No. 12-1933. Filed for public inspection October 5, 2012, 9:00 a.m.]