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PA Bulletin, Doc. No. 97-1244

THE COURTS

Title 231--RULES OF CIVIL PROCEDURE

PART I.  GENERAL

[231 PA. CODE CH. 1000]

Proposed Recommendation No. 144; Pleadings

[27 Pa.B. 3995]

   The Civil Procedural Rules Committee proposes to recommend the amendment of Rules of Civil Procedure 1019 and 1033 governing pleadings. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court.

   All communications in reference to the proposed recommendation should be sent not later than September 12, 1997 to Harold K. Don, Jr., Esquire, Counsel, Civil Procedural Rules Committee, 5035 Ritter Road, Suite 700, Mechanicsburg, Pennsylvania 17055, or E-Mail to civil.rules@court.state.pa.us.

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure nor will it be officially adopted or promulgated by the Court.

Annex A

TITLE 231.  RULES OF CIVIL PROCEDURE

PART I.  GENERAL

CHAPTER 1000.  ACTIONS AT LAW

Subchapter A.  CIVIL ACTION PLEADINGS

Rule 1019.  Contents of Pleadings. General and Specific Averments.

*      *      *      *      *

   (i)  In an action seeking monetary relief for bodily injury, death or property damage, theories of negligence may be averred generally.

   Official Note:  Subdivision (i) applies only to those actions for which damages for delay may be awarded pursuant to Rule of Civil Procedure 238.

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, substitute a party, correct the name of a party or amend [his] a 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 of a pleading relates back to the date of the commencement of the action when

   (1)  the amendment substitutes a party against whom a claim is asserted if within the period provided by law for commencing the action or for service of original process, the party to be substituted

   (i)  has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and

   (ii)  knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party, or

   Official Note:  The amendment of a pleading to substitute a party is subject to considerations of time in light of the procedural posture of the case so that there is no prejudice to the party substituted.

   The period for commencing an action or for service of original process is determined by Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), and its progeny.

   (2)  the amendment substitutes as a party the personal representative of a deceased named party whether death occurred before or after commencement of the action.

   Official Note:  An action may be brought against a deceased individual if it is not known that the individual is deceased or if the identity of the personal representative cannot be determined. An action may not be brought against the estate of a deceased individual.

Explanatory Comment

I.  Rule 1019

   Rule 1029 governing denials was amended in 1994 by adding subdivision (e) to provide for a general denial in actions for bodily injury, death or property damage. Now a corresponding amendment governing pleading in those actions is proposed for Rule 1019. New subdivision (i) provides that ''theories of negligence may be averred generally.'' Factual detail will be revealed in discovery proceedings.

II.  Rule 1033

   New subdivision (b) adds two provisions to the rules of civil procedure relating to the substitution of a party and the relation back of that substitution ''to the date of the commencement of the action.''

   The first provision, subdivision (b)(1), is directed solely to the instance when the wrong party has been sued. This provision allowing the substitution of the correct party is modeled on Federal Rule of Civil Procedure 15(c)(3) but is not a verbatim copy of it.

   The second provision, subdivision (b)(2), is similarly directed to the instance when the wrong party has been sued. In this case, the wrong party is a defendant who is deceased at the time the action is commenced. The rule also encompasses the situation in which the right party has been sued, i.e., the defendant is living when the action is commenced but dies thereafter. In both cases, the rule provides for the substitution of the personal representative of the decedent.

   The addition of proposed subdivision (b)(2) will change the present practice stated in Goodrich-Amram 2d § 2351:7, and § 1033:31 as well, that ''where a named defendant is dead at the time an action is commenced, the suit is a nullity because of the lack of a party defendant and, consequently, there can be no successor to the interest or office of the defendant.''

By the Civil Procedural Rules Committee

EDWIN L. KLETT,   
Chairperson

[Pa.B. Doc. No. 97-1244. Filed for public inspection August 8, 1997, 9:00 a.m.]


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