1

 The property at issue (“The Premises”) is located at 528 W. Saylor Street,

Atlas, Pennsylvania.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY LEHMAN and WILLIAM :

LEHMAN, :

: Civil Action No. 4:10-CV-0197

Plaintiffs, :

: (Judge McClure)

v. :

:

DIAMOND DEVELOPMENT CO., :

INC., et al., :

:

Defendants. :

MEMORANDUM

June 2, 2010

I. BACKGROUND

On January 26, 2010, plaintiffs Kathy Lehman and her husband, William

Lehman, both citizens of Florida, instituted this civil action against defendants, and

Pennsylvania citizens, Diamond Development Co., Inc. (“Diamond Development”)

and Patricia Guarna and Vincent Guarna, employees and principals of Diamond

Development Co. (Rec. Doc. No. 1). Plaintiffs’ claims arise out of an alleged

incident, occurring on June 11, 2008, in which Mrs. Lehman claims to have slipped

and fallen on property owned and managed by Diamond Development, Patricia

Guarna, and Vincent Guarna (“Diamond Development Defendants”).1

 Id. at 2. In

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their original complaint, plaintiffs alleged that Mrs. Lehman slipped and fell on a

clear liquid near vending machines on premises owned and managed by the

Diamond Development defendants. Id. at 2-3. Plaintiffs allege that the defendants

breached their duty of care as owed to Mrs. Lehman and that such a breach caused

her to incur medical expenses, pain and suffering, lost wages, an impaired earning

capacity, scarring, disfigurement, a loss of life’s pleasures, and other damages. Id.

at 4-5. Mr. Lehman also claims to have lost the companionship, services, advice,

and consortium of his wife. Id. at 5.

II. PROCEDURAL HISTORY

The Diamond Development defendants filed an answer to the plaintiffs’

original complaint on February 19, 2010. (Rec. Doc. No. 5 at 2-5). In their

response, the Diamond Development defendants also included a third-party

complaint against Community Services Group, Inc. (“Community Services

Group”), Mrs. Lehman’s employer and the lessee of the premises, and Pepsi-Cola

Metropolitan Bottling Company (“Pepsi-Cola Bottling Company”), which installed

the vending machine near the location of the alleged June 11, 2008 incident. Id. at

5-11. The Diamond Development defendants contend that, “[i]f the plaintiff was

injured on the Premises, the injury and damage sustained by the plaintiff result[ed]

solely from a breach by the [Community Services] Group of the duty to maintain

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the [P]remises.” Id. at 7. In addition, the Diamond Development defendants claim

that Pepsi-Cola Bottling Company “breached the duty to maintain the soda vending

machine and may have caused injury to the plaintiff.” Id. at 9.

On March 2, 2010, plaintiffs filed an amended complaint, as of right and

pursuant to Federal Rule of Civil Procedure 15(a)(1)(B), adding claims against

Pepsi-Cola Bottling Company. (Rec. Doc. No. 8). As an attachment to the

amended complaint, plaintiffs and the Diamond Development defendants included

a stipulation of counsel, in which defense counsel consented to the filing of the

amended complaint against Pepsi-Cola Bottling Company. Id. at 8. In addition,

both counsel agreed that the answer filed by the Diamond Development defendants

on February 19, 2010 would be deemed as applying to the amended complaint and

that any further answer need not be filed. Id.

On April 14, 2010, plaintiffs filed a second-amended complaint. (Rec. Doc.

No. 9). In their second-amended complaint, plaintiffs appeared to name as

defendants PepsiCo, Inc., t/d/b/a PepsiCo America Beverages and t/d/b/a Pepsi

Beverages Company, and Pepsi Bottling Group, the predecessor to Pepsi

Beverages Company which previously conducted business as Pepsi-Cola

Metropolitan Bottling Company. By an order dated May 4, 2010, this court struck

plaintiffs’ second-amended complaint, and directed the plaintiffs to, pursuant to

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Fed. R. Civ. P. 15(a) and Middle District Local Rule 15.1, amend their pleading

either with the opposing party’s consent or by seeking leave of court. (Rec. Doc.

No. 11).

Pursuant to this court’s May 4, 2010 Order, plaintiffs filed a motion for

leave to file a second-amended complaint, as well as a brief in support. (Rec. Doc.

Nos. 12 and 13). With this motion, plaintiffs seek to add as defendants PepsiCo,

Inc. t/d/b/a PepsiCo America Beverages and t/d/b/a Pepsi Beverages Company,

Pepsi Bottling Group, and Pepsi Cola Metropolitan Bottling Company (“Pepsi

Defendants”). (Rec. Doc. No. 12 at 4, Exhibit 1). Although any brief filed in

opposition to the instant motion was due no later than June 1, 2010, no such brief

has been filed.

In light of the above, the instant motion seeking leave to file a secondamended complaint is ripe for disposition. For the following reasons, we will grant

the motion.

III. DISCUSSION

In their brief filed in support of the instant motion, plaintiffs argue that this

court should allow the filing of a second-amended complaint, as “justice so

requires,” pursuant to Fed. R. Civ. P. 15(a)(2). (Rec. Doc. No. 13 at 4). Plaintiffs

indicate that they simply seek to add as defendants entities they believe may be

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responsible for the accident at issue, they have sought amendment without undue

delay, and they wish to make such amendment before the statute of limitations

relevant to the complaint expires. Id. at 4-5. In addition, plaintiffs contend that the

present defendants are not prejudiced by such amendment and that any newly

added defendants similarly would not be prejudiced, as the relevant statute of

limitations has not yet run. Plaintiffs also contend that an order issued by this

court allowing them to file a second-amended complaint would promote judicial

economy and a more timely resolution of the current dispute. Id. at 5.

We agree with plaintiffs that, in this instance, it is proper for plaintiffs to be

afforded an opportunity to file their second-amended complaint. As plaintiffs note,

the relevant statute of limitations has not yet run and there is no indication that the

original defendants or the Pepsi defendants will be prejudiced or that plaintiffs are

seeking amendment based upon an improper motive. Therefore, we will grant the

plaintiffs’ motion for leave to file a second-amended complaint. (Rec. Doc. No.

12).

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IV. CONCLUSION

For the aforementioned reasons, we will grant plaintiffs’ motion seeking to

amend their complaint, as justice so requires. (Rec. Doc. No. 12).

s/ James F. Mcclure, Jr. 

James F. McClure, Jr.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KATHY LEHMAN and WILLIAM :

LEHMAN, :

: Civil Action No. 4:10-CV-0197

Plaintiffs, :

: (Judge McClure)

v. :

:

DIAMOND DEVELOPMENT CO., :

INC., et al., :

:

Defendants. :

ORDER

June 2, 2010

For the reasons set forth in the accompanying memorandum, IT IS HEREBY

ORDERED THAT: 

1. Plaintiffs’ motion for leave to file a second-amended complaint is

GRANTED. (Rec. Doc. No. 12).

2. Plaintiffs shall file a second-amended complaint in the form attached

as Exhibit 1 to Record Document No. 12 on or before June 9, 2010.

s/ James F. Mcclure, Jr. 

James F. McClure, Jr.

United States District Judge

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