THE COURTS
Title 231—RULES OF
CIVIL PROCEDURE
PART I. GENERAL
[231 PA. CODE CH. 1000]
Order Amending Rule 1033 of the Pennsylvania Rules of Civil Procedure; No. 756 Civil Procedural Rules Docket
[54 Pa.B. 5978]
[Saturday, September 21, 2024]
Order Per Curiam
And Now, this 6th day of September, 2024, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 52 Pa.B. 5118 (August 20, 2022):
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 1033 of the Pennsylvania Rules of Civil Procedure is amended in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective January 1, 2025.
Additions to the rule are shown in bold and are underlined.
Deletions from the rule are shown in bold and brackets.
Annex A
TITLE 231. RULES OF CIVIL PROCEDURE
PART I. GENERAL
CHAPTER 1000. ACTIONS
Subchapter A. CIVIL ACTION
PLEADINGS (Editor's Note: Rule 1033 as printed in 231 Pa. Code does not contain Explanatory Comments—2013 and 2017.)
Rule 1033. Amendment.
(a) General Rule. 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.
(b) Relation Back. 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 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.
(c) John Doe Defendants. An amendment substituting the actual name of a defendant for a Doe designation as provided in Rule 2005 relates back to the date of the commencement of the action if, within the time provided by Rule 401 for service, the defendant named by the amendment has received actual or constructive notice of the commencement of the action such that it will not be prejudiced in maintaining a defense on the merits and the defendant knew or should have known that the action would have been brought against it but for lack of knowledge of the defendant's actual name.
(d) Highlighting of Amendments.
(1) A party filing a motion to amend a pleading shall attach:
(i) a clean copy of the proposed amended pleading; and
(ii) a comparison copy of the proposed amended pleading identifying the changes by striking through the material to be deleted and underlining the material to be added.
(2) If there is a discrepancy between the clean copy and the comparison copy of the proposed amended pleading, the clean copy shall be the controlling document.
Historical Commentary The following commentary is historical in nature and represents statements of the Committee at the time of rulemaking:
Explanatory Comment—2013 Rule 1033 has been 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.
Subdivision (b) of Rule 2232 addressing the joinder of an additional party is being rescinded. 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, he or she should use the rules governing the discontinuance of an action.
Explanatory Comment—2017 Currently, the Rules of Civil Procedure do not expressly permit an amendment correcting the name of a party against whom a claim is asserted to relate back without a showing of concealment when the statute of limitations has expired and the effect of that correction operates to add another party. However, case law has interpreted the Rules to permit such an amendment within the statute of limitations. Rule 1033 has been amended to expressly permit amendments correcting the name of the party against whom a claim is asserted 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: Harry Roberts, who resides at 949 Alcoma Street, Pittsburgh, PA, was the driver of an automobile which struck the plaintiff when he was crossing the intersection at Grant and Forbes Street, Pittsburgh, PA, at approximately 11:00 a.m. on October 11, 2013. The plaintiff's complaint, filed on October 2, 2015, mistakenly identifies the driver as Henry Rosen. He is the only named defendant in the complaint.
On October 7, 2015, the Sheriff made service by serving Mary Roberts at 949 Alcoma Street, Pittsburgh, PA. She is described in the Sheriff's Return as the wife of the defendant. On January 2, 2016, the complaint is amended to correct ''Henry Rosen'' to ''Harry Roberts.''
The amendment of Rule 1033 expressly permits the plaintiff to amend the complaint to correct the name of the defendant to Harry Roberts, because it is clear from the body of the complaint that the plaintiff was suing the driver of the automobile which struck the plaintiff and service of the complaint furnished sufficient notice to Harry Roberts that a lawsuit has been initiated against him for actions he is liable for even though the defendant is identified on the complaint as Henry Rosen. This is consistent with existing case law and codifies current practice.
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 this amendment. The interests of justice are served by a rule of civil procedure permitting a party to correct a complaint that provides an incorrect name of a party when there is no prejudice to the party brought in by the amendment.
The amendment of Rule 1033 does not alter the concealment doctrine and the discovery rule. The amendment is intended to cover situations in which neither the concealment doctrine nor the discovery rule apply.
SUPREME COURT OF PENNSYLVANIA
CIVIL PROCEDURAL RULES COMMITTEE
ADOPTION REPORT
Amendment of Pa.R.Civ.P. 1033 On September 6, 2024, the Supreme Court of Pennsylvania amended to Pennsylvania Rule of Civil Procedure 1033 relating to the amendment of pleadings. The Civil Procedural Rules Committee has prepared this Adoption Report describing the rulemaking process. An Adoption Report should not be confused with Comments to the rules. See Pa.R.J.A. 103, cmt. The statements contained herein are those of the Committee, not the Court.
The Committee received a request to consider amending Pa.R.Civ.P. 1033 to require the attachment of the proposed amended pleading to a motion to amend. The requester suggested such a requirement would curb a problem encountered with opposing counsel, who had asked for the requester's consent to an amendment of a complaint, but refused to provide any substantive infor-mation about the amendment. In turn, the attorney seeking the amendment would file a motion to amend that likewise did not provide any information on the specific amendment nor was the proposed amended pleading attached to the motion because Pa.R.Civ.P. 1033 does not expressly so require.
The Committee initially observed that Pa.R.Civ.P. 1033 does not address the content for a motion to amend a pleading. Pa.R.Civ.P. 208.2 generally governs the content of motions, but does not specifically require the attachment of documents in support of the motion.
Noting the silence of requirements in the Rules of Civil Procedure, the Committee then examined local rules addressing the amendment of pleadings. Research revealed a handful of local rules governing amendments. These rules focused on the filing of amended pleadings, rather than the content of the motion to amend. McKean County Local Rule 1033 and Potter County Local Rule 1033 both require ''[t]he amendment pleading [to] clearly indicate that it is an amended pleading, the paragraphs [to] be renumbered, and the new portion [to] be underlined.'' Clarion County Local Rule 1033, Franklin/Fulton Counties Local Rule 39-1033.1, Jefferson County Local Rule 1033, Mercer County Local Rule 1033, and Schuylkill County Local Rule 1033 are similar to the McKean and Potter County Local Rules except they do not require the underlining of the new portion of the pleading.
The Committee also examined procedural rules from other jurisdictions. Research revealed a relative dearth of procedural rules governing the requirements for the content of a motion to amend. New Jersey, Utah, and Puerto Rico all require the proposed amended pleading to be attached to the motion to amend. See N.J.R. 4:9-1 (''A motion for leave to amend shall have annexed thereto a copy of the proposed amended pleading.''); U.R.C.P. Rule 15(a)(2) (''The party must attach its proposed amended pleading to the motion to permit an amended pleading.''); P.R.R.C.P. 13.1 (''The entire amended pleading shall be attached to the motion for leave to amend the pleadings.''). New York is the most comprehensive in that it requires the proposed amended pleading to accompany the motion to amend and to show the changes to be made to the pleading. See N.Y.C.P.L.R. 3025(b) (''Any motion to amend. . .pleadings shall be accompanied by the proposed amended. . .pleading clearly showing the changes or additions to be made to the pleading.'')
The Committee also examined rules from Delaware and Maryland. Del.Sup.Ct.R. 15(aa) is similar to the McKean and Potter County Local Rules described above in that it applies to the filing of amended pleadings and requires the amended pleading to indicate how it differs from the original pleading. Md.R.C.P. 2-341(e) also applies to the filing of amended pleadings and requires the filing of the amended pleading together with a comparison copy showing through specified textual indicators the text to be deleted and the text to be added.
In developing the amendment to Pa.R.Civ.P. 1033, the Committee favored the approach taken by New York to require the attachment of the proposed amended pleading the motion to amend and for the proposed amended pleading to explicitly show the changes to be made. This will ensure that both parties and the court will be certain of the exact text being amended in a pleading. In addition, the Committee modified this language slightly to include explicit provisions, as found in the Maryland rule, to specify that the proposed amended pleading show through textual indicators, either by striking through or bracketing deletions, or by underlining or bolding additions, the text to be amended.
The Committee published the proposal for comment, see 52 Pa.B. 5118 (August 20, 2022), and received two comments in support of the proposal as drafted.
Subsequent to publication, the amendment to Pa.R.Civ.P. 1033 was further refined. First, it was reconsidered whether a party filing the motion to amend should also file a copy of the proposed amended pleading without textual indicators, i.e., a ''clean'' copy. The requirement of a clean copy would remove any burden on the trial court and the opposing party from having to resolve the amended notations to determine the final version of the text.
In developing this requirement, it was recognized that requiring both the attachment of a clean copy and a comparison copy may lead to discrepancies between those two documents, and that the rule would benefit with an express requirement establishing the controlling document. It was reasoned that the clean copy is the document formally replacing the prior pleading, whereas the comparison copy is operating as an aid to the parties and the court in determining the motion to amend. As a result, the rule was modified to provide that the clean copy is the controlling document in the event there are discrepancies between the two documents.
Second, the requirement in the proposed rule permitting various format options to show additions and deletions in the comparison copy of the amended pleading was reconsidered. A single, uniform format would provide consistency in practice and procedure throughout the Commonwealth. As a result, the amendment was modified to require a single, uniform format for showing additions and deletions in the comparison copy: deletions must be shown by striking through the material to be deleted and additions must be shown by underlining the material to be added.
The amendment becomes effective January 1, 2025.
[Pa.B. Doc. No. 24-1331. Filed for public inspection September 20, 2024, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
