J-S57030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LUZ RIVERA AND ABRIANNA RIVERA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RONALD MANZI

Appellee No. 948 EDA 2015

Appeal from the Order Entered March 3, 2015

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2014-07070

BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 23, 2015

Luz and Abrianna Rivera (Riveras) appeal from the order entered on 

March 3, 2015,1in the Court of Common Pleas of Bucks County, denying 

them leave to amend their complaint and granting summary judgment in 

favor of Ronald Manzi. The Riveras claim the trial court erred (1) in 

determining adding a new count of negligent entrustment against Manzi was 

not allowable because the statute of limitations had expired, and (2) in 

granting summary judgment prior to discovery being taken and based upon

____________________________________________

1 There were multiple orders signed by the trial court on March 3, 2015; two 

are relevant herein. The motion for summary judgment addressed all the

allegations in the complaint. This order was docketed on March 4, 2015. 

However, the motion for leave to amend the complaint was pending. That 

motion was also signed on March 3, 2015, but was not docketed until March 

6, 2015. It is clear that the effect of both orders was to terminate all claims. 

For ease of reference, we will treat the order granting summary judgment as 

the final order that made the denial of the motion to amend appealable.
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incompetent evidence. Following a thorough review of the submissions by 

the parties, relevant law, and the certified record, we affirm the denial of the 

motion to amend and reverse the grant of summary judgment. Accordingly, 

we remand this matter for further proceedings.

Because no discovery has been taken in this matter, the statement of 

facts is brief. Pursuant to the complaint, on October 14, 2012, Luz Rivera 

was operating her car and Abrianna Rivera was her passenger. While 

stopped on South Buckstown Road, Middletown, Pennsylvania, the Rivera car 

was struck from behind by a car driven by Ronald Manzi. Both plaintiffs 

claim to have suffered various spinal injuries; Luz Rivera also claimed to 

suffer from closed head trauma and headaches. All claims of negligence 

against Manzi arose from his alleged negligent operation of the car. The 

instant lawsuit was filed in Bucks County on October 9, 2014, less than one 

week prior to expiration of the statute of limitations.

On November 20, 2014, Manzi filed a timely answer, claiming in 

relevant part, that he was not the driver of the car at the time of the 

accident, rather his son, Christopher, was. On November 26, 2014, Manzi 

filed a motion for summary judgment claiming the Riveras had sued the 

wrong party and that the statute of limitations expired, leaving the 

complaint fatally flawed. Manzi attached a copy of a Middletown Township 

police report that identified Christopher Manzi as the driver of the Manzi 

vehicle. The report also listed Ronald Manzi as the owner of the car. 
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The Riveras responded by filing a motion to amend the complaint by 

adding a claim of negligent entrustment against Ronald Manzi. In the 

motion, the Riveras stated the identity of the driver of the Manzi car was at 

issue and the claim of negligent entrustment was raised as a claim in the 

alternative. The Riveras also opposed the motion for summary judgment 

arguing there was no evidence to support Ronald Manzi’s assertion he was 

not the driver. The Riveras noted, “The copy of the [police accident] report 

shall not be admissible as evidence in any action for damages or criminal 

proceedings arising out of a motor vehicle accident.” See 75 Pa.C.S. § 

3751(b)(4). Accordingly, the police report identifying Christopher Manzi as 

the driver was inadmissible pursuant to statute and represented inadmissible 

hearsay. On March 3, 2014, without a hearing, by separate orders, the trial 

court granted Manzi’s motion for summary judgment and denied the Riveras’ 

motion for leave to amend. This timely appeal followed.

Initially we note, “[o]ur standard of review of a trial court's order 

denying a plaintiff leave to amend its complaint ... permits us to overturn 

the order only if the trial court erred as a matter of law or abused its 

discretion.” Schwartzwaelder v. Fox, 895 A.2d 614, 621 (Pa. Super. 

2006) (citation omitted).

Additionally,

Our scope of review of a trial court's order granting or denying 

summary judgment is plenary, and our standard of review is 

clear: the trial court's order will be reversed only where it is 
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established that the court committed an error of law or abused 

its discretion.

Summary judgment is appropriate only when the record clearly 

shows that there is no genuine issue of material fact and that 

the moving party is entitled to judgment as a matter of law. The 

reviewing court must view the record in the light most favorable 

to the nonmoving party and resolve all doubts as to the 

existence of a genuine issue of material fact against the moving 

party. Only when the facts are so clear that reasonable minds 

could not differ can a trial court properly enter summary 

judgment.

Linde v. Linde Enterprises, Inc., 118 A.3d 422, 430 (Pa. Super. 2015) 

(citation omitted).

We now turn our attention to the denial of the motion for leave to 

amend the complaint. In general, “[l]eave to amend pleadings is to be 

liberally granted.” Chaney v. Meadville Medical Center, 912 A.2d 300, 

303 (Pa. Super. 2006). 

However, an amendment introducing a new cause of action will 

not be permitted after the Statute of Limitations has run in favor 

of a defendant. Only if the proposed amendment merely 

amplifies, as opposed to altering, the cause of action already 

averred, will it be allowed if the statute of limitations has run.

Id. at 303-04.

Instantly, there is no dispute that the statute of limitations had run 

prior to the Riveras’ attempt to amend the complaint. Therefore, we must 

determine whether the amendment sought to amplify or alter the complaint. 

“An amendment raises a new cause of action if it involves a different theory 

or basis of recovery, pleads a different relationship between the parties, or 
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required different proof.” Shaffer v. Pennsylvania Assigned Claim Plan 

Ins. Co. of N. Am., 518 A.2d 1213, 1221 (Pa. Super. 1986).

It is axiomatic that the elements of a negligence-based cause of 

action are a duty, a breach of that duty, a causal relationship 

between the breach and the resulting injury, and actual loss. 

Charlie v. Erie Ins. Exchange, 100 A.3d 244, 250 (Pa. Super. 2014).

As originally pled, the Riveras claimed Manzi’s negligent actions 

consisted of:

A) Operating the Manzi vehicle in a negligent and careless 

manner;

B) Failing to have the Manzi vehicle under proper and adequate 

control at the time and place aforesaid;

C) Failing to give proper and sufficient approach of the Manzi 

vehicle;

D) Operating the Manzi vehicle without due regard for the rights, 

safety and position of Luz Rivera herein at the time and place 

aforesaid;

E) Failing to maintain a clear distance between the Manzi vehicle 

and the DeLuca [sic] vehicle; and

F) Causing the Manzi vehicle to strike the Rivera vehicle.

Complaint, 10/14/2009, at ¶¶ 17, 19.

All of these claims of Manzi’s negligence are based upon the ostensible 

fact that Ronald Manzi was operating the car when it was involved in the 

accident. 

However, 

Under the theory of negligent entrustment:
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It is negligence to permit a third person to use a thing or 

to engage in an activity which is under the control of the 

actor, if the actor knows or should know that such person 

intends or is likely to use the thing or to conduct himself in 

the activity in such a manner as to create an unreasonable 

risk of harm to others. 

... However, our cases do require that the entrustee be 

causally negligent before the entrustor may be held liable 

through negligent entrustment.

Phillips v. Lock, 86 A.3d 906, 913 (Pa. Super. 2014) (citation omitted).

It is clear that to prove negligent entrustment against Ronald Manzi 

would require entirely different proof from a claim that he operated the car 

negligently. In the instant matter, negligent entrustment would require 

proof that Christopher Manzi (the entrustee) was causally negligent in the 

manner Ronald Manzi was originally alleged to have been negligent. 

Further, the Riveras would be required to prove that Ronald Manzi (the 

entrustor) was negligent in a new manner, by failing to recognize his son 

should not have been allowed to drive the car. 

Not only does the claim of negligent entrustment require different 

proof, but it also changes the relationship between the parties. In the 

original complaint, Manzi was alleged to have been directly negligent 

regarding the Riveras. In the proposed amended complaint, in the 
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alternative, Manzi was allegedly liable to the Riveras by negligently 

permitting his son to operate his car.2

Accordingly, the proposed amendment seeking to hold Manzi 

accountable through the theory of negligent entrustment represented an 

impermissible addition of a new cause of action past the expiration of the 

statute of limitations. The Riveras are not entitled to relief on this issue.

Next, the Riveras argue the trial court improperly granted summary 

judgment in favor of Manzi based upon the original cause of action that 

alleged Manzi was the operator of the car at the time of the accident. The 

Riveras claim summary judgment was premature in that there remained an 

open dispute of a material fact. That fact being the identity of the driver of 

the Manzi car.

In his answer to the complaint, Manzi claimed he was not the driver of 

the car at the relevant time; rather his son Christopher was driving. In the 

subsequent motion for summary judgment, filed before any discovery had 

been taken, Manzi included a copy of the Middletown Township Police 

Accident Report. See Motion for Summary Judgment, 11/26/2014, Exhibit 

C. This police report indicates that on October 14, 2012, Christopher Manzi 

was the operator of the blue Honda CRV owned by Ronald Manzi. The trial 

____________________________________________

2 The amended complaint did not abandon the original claim that Manzi was 

the driver of the car. The amended complaint added the allegations of 

negligent entrustment.
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court apparently accepted this report as proof that Ronald Manzi was not the 

operator. In its Pa.R.A.P. 1925(a) opinion, without comment or explanation,

the trial court merely noted that Ronald Manzi was not the operator of the 

car at the relevant time and therefore could have been negligent as alleged 

by the Riveras.

The police report would be compelling evidence of Ronald Manzi’s noninvolvement except that such reports are statutorily prohibited from being 

used as evidence. The relevant statute specifically states:

The copy of the [police accident] report shall not be admissible 

as evidence in any action for damages or criminal proceedings 

arising out of a motor vehicle accident.

75 Pa.C.S. § 3751(b)(4).

Manzi cites no rule of law that permits a finder of fact to base 

judgment, summary or otherwise, upon inadmissible evidence. Accordingly, 

all that was before the trial court on the issue of Ronald Manzi’s negligent 

operation of the car was the Riveras’ allegation that Manzi was the operator 

and Manzi’s denial. The simple denial of an allegation is not a proper basis 

for the grant of summary judgment. Rather, it has long been the law that, 

Our standard of review of an order granting summary judgment

requires us to determine whether the trial court abused its 

discretion or committed an error of law. Our scope of review is 

plenary. In reviewing a trial court's grant of summary judgment, 

we apply the same standard as the trial court, reviewing all the 

evidence of record to determine whether there exists a genuine 

issue of material fact. We 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. Only where there is no genuine issue 
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as to any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary 

judgment be entered. All doubts as to the existence of a genuine 

issue of a material fact must be resolved against the moving 

party.

Criswell v. Atlantic Richfield Co., 115 A.3d 906, 908-09 (Pa. Super. 

2015) (citation omitted).

Additionally,

Motions for summary judgment necessarily and directly implicate 

the plaintiff's proof of the elements of a cause of action. 

Summary judgment is proper if, after the completion of 

discovery relevant to the motion, including the production of 

expert reports, an adverse party who will bear the burden of 

proof at trial has failed to produce evidence of facts essential to 

the cause of action or defense which in a jury trial would require 

the issues to be submitted to a jury. In other words, whenever 

there is no genuine issue of any material fact as to a necessary 

element of the cause of action or defense, which could be 

established by additional discovery or expert report and the 

moving party is entitled to judgment as a matter of law, 

summary judgment is appropriate. Thus, a record that supports 

summary judgment either (1) shows the material facts are 

undisputed or (2) contains insufficient evidence of facts to make 

out a prima facie cause of action or defense.

Id. at 909.

While it is true that,

[a] non-moving party may not rely merely upon controverted

allegations in the pleadings, but must set forth specific facts by 

way of affidavit, or in some other way as provided by Pa.R.C.P. 

1035(b) [rescinded], demonstrating that a genuine issue exists
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Atkinson v. Haug, 622 A.2d 983, 985 (Pa. Super. 1993), this rule3 presupposes that the non-moving party has been given the opportunity to 

conduct discovery on the relevant issue. Here, the Riveras were afforded no 

such opportunity.4

Because there are no facts of record demonstrating who was driving 

the Manzi car at the time of the accident, summary judgment was premature 

and improper as a matter of law. Accordingly, the order granting summary 

judgment must be reversed and this matter remanded for further action.5

Order denying motion for leave to amend complaint is affirmed; order 

granting summary judgment in favor of Manzi is reversed. This matter is 

remanded for further action in accordance with this decision. Jurisdiction 

relinquished.

____________________________________________

3

Pa.R.C.P. 1035 was replaced in 1996 by Rules 1035.1-1035.6. In relevant 

part, the new rule is 1035.3(a)(1)-(2).

4 Manzi claims the Riveras implicitly agreed that he was not the driver of the 

vehicle at the time of the accident by seeking to amend the complaint to add 

negligent entrustment. By implicitly agreeing that he was not the driver, 

Manzi argues discovery is unnecessary. This argument is unavailing because 

the motion to amend states “Plaintiff’s proposed amended Complaint adds 

alternative allegations of negligent entrustment against Mr. Manzi.” See

Motion for Leave to Amend, 12/31/2014, at ¶ 7 (emphasis added). 

5 While it may seem unlikely the Riveras will prevail on the issue of who was 

driving, they must be given the opportunity to conduct discovery on the 

issue, if they so desire.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/23/2015