J. A15030/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BETTIE MOORE, ALEXANDER MOORE, : IN THE SUPERIOR COURT OF

AND EDNA NORTHCUTT : PENNSYLVANIA

:

APPELLANTS :

:

:

:

v. :

:

:

: No. 2903 EDA 2015

BRENDAN GILLIGAN :

:

Appeal from the Order August 17, 2015

In the Court of Common Pleas of Delaware County 

Civil Division at No(s): 2013-8848

BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 19, 2016

Appellants, Bettie Moore, Alexander Moore, and Edna Northcutt, 

appeal from the August 17, 2015 Order entered in the Delaware County 

Court of Common Pleas granting the Motion for Summary Judgment filed by 

Appellee, Brendan Gilligan. After careful review, we affirm.

The trial court recounted the facts and procedural history as follows:

On September 17, 2011, Appellants Bettie Moore 

(“Moore”) and Edna Northcutt (“Northcutt”) were involved 

in a motor vehicle accident at the intersection of 

Springfield Road and Saxer Road, Springfield Township, 
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Delaware County, Pennsylvania.[1] Appellants allege that 

they were struck from behind while stopped at a red light. 

Moore and Northcutt were transported from the scene of 

the accident to the hospital by ambulance. The collision 

was witnessed and reported by Springfield Police. 

Appellants filed their initial Complaint on September 9, 

2013[, eight days before the expiration of the statute of 

limitations for filing a Complaint,] alleging negligence on 

the part of [Appellee] Brendan Gilligan as the operator of 

the striking vehicle. Since the filing of the initial 

Complaint, Appellants have not amended the Complaint to 

add or substitute any additional parties as defendants nor 

have they sought leave to do so. Appellants have not 

alleged negligent entrustment on the part of Appellee nor 

have they alleged any form of agency.

* * *

The parties exchanged interrogatories to which Appellee 

replied on January 7, 2014. Appellee’s verified answers 

stated that his niece Ashley Jest (hereinafter “Jest”) was 

the driver involved in the incident and that he had no 

personal involvement in the incident. At the time of the 

accident, Jest was seventeen years old, a minor, and was 

insured on Gilligan’s policy. The vehicle was registered in 

the name of her aunt, Appellee’s wife, Debra Gilligan. 

Appellants failed to respond to Appellee’s discovery 

requests.

On May 28, 2015, Appellee filed a Motion for Summary 

Judgment. [On July 13, 2015, Appellants filed an Answer 

to Appellee’s Motion for Summary Judgment and a 

Countermotion for Partial Summary Judgment on the 

question of the identity of the driver of the striking 

vehicle.] . . . This [c]ourt determined that there were no 

genuine issues of material fact with regard to the identity 

of the driver of the striking vehicle and thus [on August 

17, 2015,] entered summary judgment in favor of the 

 

1 Appellant Alexander Moore is Bettie Moore’s husband. He was not involved 

in the accident, but filed a loss of consortium claim against Appellee.
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Appellee/Defendant[, and denied Appellants’ 

Countermotion for Partial Summary Judgment].

Trial Ct. Op., 12/10/15, at 2-4 (citations omitted).

On August 24, 2015, Appellants filed a Motion for Reconsideration of 

the trial court’s Order granting Appellee’s Motion for Summary Judgment, 

which the trial court denied. On September 15, 2015, Appellants timely 

appealed from the trial court’s August 17, 2015 Order. Both Appellants and 

the trial court complied with Pa.R.A.P. 1925. 

Appellants raise the following four issues on appeal:

1. Did the trial court err in granting summary judgment to 

[Appellee] solely on the basis of the testimonial written 

statements of [Appellee] and the investigating police?

2. Should [Appellee’s] [Motion for Summary Judgment] 

have been denied where the [M]otion was based solely 

upon the claim that [Appellee] was not operating the 

striking vehicle and where [Appellee] admitted to being the 

driver in the pleadings?

3. Should [Appellants] have been granted partial summary 

judgment in their favor on the issue of the identity of the 

driver of the striking vehicle where [Appellee] admitted to 

being the driver in his [A]nswer to the [C]omplaint?

4. Should [Appellants] have been permitted to amend 

their [C]omplaint to designate Ashley Jest as the operator 

of the vehicle that struck [Appellants], where the identity 

of this purported operator was actively concealed from 

[Appellants] and it was suggested that the vehicle was 

operated by [Appellee]?
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Appellants’ Brief at 3.2

Appellants’ first three issues on appeal challenge the trial court’s 

decision to enter summary judgment in favor of Appellee. We review a 

grant of summary judgment under the following well-settled standards:

Pennsylvania law provides that summary judgment may be 

granted only in those cases in which the record clearly 

shows that no genuine issues of material fact exist and 

that the moving party is entitled to judgment as a matter 

of law. The moving party has the burden of proving that 

no genuine issues of material fact exist. In determining 

whether to grant summary judgment, the trial court must 

view the record in the light most favorable to the nonmoving party and must resolve all doubts as to the 

existence of a genuine issue of material fact against the 

moving party. Thus, summary judgment is proper only 

when the uncontraverted allegations in the pleadings, 

depositions, answers to interrogatories, admissions of 

record, and submitted affidavits demonstrate that no 

genuine issue of material fact exists, and that the moving 

party is entitled to judgment as a matter of law. In sum, 

only when the facts are so clear that reasonable minds 

cannot differ, may a trial court properly enter summary 

judgment.

On appeal from a grant of summary judgment, we must 

examine the record in a light most favorable to the nonmoving party. With regard to questions of law, an 

appellate court's scope of review is plenary. The Superior 

Court will reverse a grant of summary judgment only if the 

trial court has committed an error of law or abused its 

 

2 We note at the outset that Appellants’ Brief does not comply with the Rules 

of Appellate Procedure. Although Appellants presented five issues for this 

Court’s review, Appellant’s brief only contains one argument, in violation of 

Pa.R.A.P. 2119 (“The argument shall be divided into as many parts as there 

are questions to be argued; and shall have at the head of each part[ ] the 

particular point treated therein”). Despite this briefing deficiency, we decline 

to find Appellant’s issues waived as they address each of their issues in their 

Brief. 
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discretion. Judicial discretion requires action in conformity 

with law based on the facts and circumstances before the 

trial court after hearing and consideration.

Weible v. Allied Signal, Inc., 963 A.2d 521, 525 (Pa. Super. 2008) 

(citation and quotation omitted).

Appellants claim in their first issue that the trial court erred in granting 

summary judgment in favor of Appellee because Appellee supported his 

Motion only with his responses to Appellant’s discovery requests and the 

police report of the accident. Appellant’s Brief at 8. Relying on the NantyGlo3

rule, Appellants argue that, even if uncontradicted, these documents 

cannot support the grant of summary relief. Appellants characterize 

Appellee’s discovery answers and the police report upon which Appellee 

relied as “[un]trustworthy [in] nature, as they are mere self-serving 

declarations that have not been tested by adverse interrogation in the 

presence of a jury.” Id. at 9. Appellants also claim that, pursuant to 75 

Pa.C.S. § 3751, the police report is inadmissible for any purpose. Id. We 

conclude this issue is waived.

Our review of Appellants’ Answer to Appellee’s Motion for Summary 

Judgment reveals that Appellants failed to timely raise this issue. See 

 

3 Nanty-Glo v. American Surety Co., 163 A. 523 (Pa. 1932). The NantyGlo rule generally requires the party moving for summary judgment to 

present more than testimonial affidavits or depositions to establish the 

absence of a genuine issue of material fact, because such items necessitate 

credibility determinations by a jury. Krentz v. Consolidated Rail Corp., 

910 A.2d 20, 36-37 (Pa. 2006).
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[Appellants’] Ans. to [Appellee’s] Mot. for Summ. J., 7/13/15. It appears 

that Appellants raised this issue for the first time in their August 24, 2015 

Motion for Reconsideration. See Mot. for Recons., 8/24/15, at ¶ 16. This 

Court has held, “a non-moving party’s failure to raise grounds for relief in 

the trial court as a basis upon which to deny summary judgment waives 

those grounds on appeal.” Devine v. Hutt, 863 A.2d 1160, 1169 (Pa. 

Super. 2004); see also Rabatin v. Allied Glove Corp., 24 A.3d 388, 391 

(Pa. Super. 2011) (holding issues raised in a motion for reconsideration filed 

after entry of summary judgment are “beyond the jurisdiction of this Court 

and thus may not be considered by this Court on appeal”). This includes the 

failure to raise a Nanty-Glo issue. Lineberger v. Wyeth, 894 A.2d 141, 

149 (Pa. Super. 2006). Accordingly, Appellants are not entitled to relief.

Appellants’ second and third issues are interrelated, so we address 

them together. In these issues, Appellants claim the trial court erred in 

granting summary judgment in Appellee’s favor because Appellee failed to 

deny the allegations in the Complaint with requisite specificity, and, 

therefore, admitted that he was the driver of the striking vehicle. 

Appellants’ Brief at 11-13. Appellants aver that the trial court, therefore, 

should have granted partial summary judgment in their favor as to the 

identity of the driver of the striking vehicle. Id. at 13. 

“[T]he interpretation and application of the Pennsylvania Rules of Civil 

Procedure presents a question of law.” Barrick v. Holy Spirit Hosp. of the 
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Sisters of Christian Charity, 32 A.3d 800, 808 (Pa. Super. 2011) (citation 

omitted). Therefore, “our standard of review is de novo, and our scope of 

review is plenary.” Id.

Pa.R.C.P. 1029 governs denials in pleadings, and the effect of the 

failure to deny allegations. See Pa.R.C.P. 1029. Rule 1029 provides, in 

relevant part, as follows:

(c) A statement by a party that after reasonable 

investigation the party is without knowledge or information 

sufficient to form a belief as to the truth of an averment 

shall have the effect of a denial.

Note: Reliance on subdivision (c) does not excuse a 

failure to admit or deny a factual allegation when it 

is clear that the pleader must know whether a 

particular allegation is true or false. See Cercone v. 

Cercone, 254 Pa.Super. 381, 386 A.2d 1 (1978).

* * *

(e) In an action seeking monetary relief for bodily injury, 

death or property damage, averments in a pleading to 

which a responsive pleading is required may be denied 

generally except the following averments of fact which 

must be denied specifically:

(1) averments relating to the identity of the person 

by whom a material act was committed, the agency 

or employment of such person and the ownership, 

possession or control of the property or 

instrumentality involved;

(2) if a pleading seeks additional relief, averments in 

support of such other relief; and

(3) averments in preliminary objections.

Note: Subdivision (e) applies only to those 

actions for which damages for delay may be 
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awarded pursuant to Rule of Civil Procedure 

238.

Pa.R.C.P. 1029(c), (e).

In Paragraph 4 of Appellants’ Complaint, Appellants alleged that 

Appellee “was the operator of a motor vehicle also travelling on Springfield 

Road in the same direction as [Appellants] were riding, in such a careless, 

reckless and negligent manner as to cause a collision with the rear of 

[Appellants’] vehicle causing property damage and severe personal injuries 

to [Appellants]. Complaint, 7/9/13, at ¶ 4.

Appellee denied the averment in Paragraph 4 by stating:

DENIED. After reasonable investigation, answering 

Defendant is without knowledge or information sufficient to 

form a belief as to the truth of the averments contained in 

the corresponding paragraph of Plaintiff’s Complaint. Said 

averments are therefore denied. By way of further 

answer, it is specifically denied that answering Defendant 

was in any way negligent, reckless or careless. To the 

contrary, answering Defendant acted reasonably and with 

care. Strict proof thereof is demanded.

[Appellee’s] Answer to Complaint and New Matter, 10/24/13. At ¶ 4. 

 Appellants appear to argue that Paragraph 4 of their Complaint 

served the sole purpose of identifying Appellee as the driver of the striking 

vehicle, and, therefore, Appellee was required to deny this averment 

specifically pursuant to Pa.R.C.P. 1029(e). Our review of the pleadings, 

however, reveals that Paragraph 4 of the Complaint is more in the nature of 

an allegation of the driver’s negligence than a statement of identity of the 
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driver. Accordingly, Appellee properly answered Paragraph 4 of Appellants’ 

Complaint pursuant to Pa.R.C.P. 1029(c). 

The note following Pa.R.C.P. 1029(c) provides an exception to the 

Rule, which would prevent Appellee from claiming lack of sufficient 

knowledge about his involvement in the accident had he been the driver. 

Since he was completely uninvolved in the accident, the exception does not 

apply. See Cercone v. Cercone, supra. 

We conclude that Appellee sufficiently denied the averment set forth in 

Paragraph 4 of Appellants’ Complaint, and the exception in the note to 

Pa.R.C.P. 1029(c) does not act to render Appellee’s denial insufficient. 

Accordingly, the trial court did not err in granting Appellee’s Motion for 

Summary Judgment4and denying Appellants’ Countermotion for Partial 

Summary Judgment. 

In their last issue, Appellants fault the trial court for not permitting 

them to amend their Complaint to name Ashley Jest as a defendant.5 They 

 

4 Moreover, we note that summary judgment is granted on pleadings, 

answers to interrogatories, depositions, and affidavits. The evidence 

presented at the summary judgment hearing demonstrated that Appellants 

knew at the time they filed their Complaint that Appellee was not the driver 

of the striking vehicle when the accident occurred.

5

It bears noting that Appellants never filed a Petition to Amend the 

Complaint pursuant to Pa.R.C.P. 1033, with an Amended Complaint annexed 

thereto. Rather, Appellants requested in their Motion for Reconsideration of 

the Order granting summary judgment in favor of Appellee that Appellants 

be given leave to amend their Complaint to add the name Ashley Jest as a 

prospective defendant driver. See Mot. for Recons., 8/24/15, at 4.
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aver that Appellee misled them by actively concealing the true identity of the 

driver of the striking vehicle. Appellant’s Brief at 14-15, 17.

Pa.R.C.P. 1033 controls the amendment of pleadings. It permits a 

party, by leave of court or with consent of the adverse party, to correct the 

name of a party. Pa.R.C.P. 1033. 

When reviewing a trial court’s decision to permit or deny a party leave 

to amend a complaint, we grant the trial court broad discretion. Diaz v. 

Schultz, 841 A.2d 546, 549 (Pa. Super. 2004). “We will not disturb the 

sound discretion of the trial court absent an abuse of discretion.” Id.

Generally, a plaintiff may not amend a complaint to add a new party 

after the expiration of the statute of limitations. Zercher v. Coca-Cola 

USA, 651 A.2d 1133, 1134 (Pa. Super. 1994). However, if the defendant 

actively conceals the identity of the correct party from the plaintiff until after 

the statute of limitations has run, the statute of limitations will be tolled to 

permit amendment. Diaz, 841 A.2d at 549 (citing Lafferty v. The Alan 

Wexler Agency, Inc., 574 A.2d 671, 674 (Pa. Super. 1990).

In support of their argument that Appellee actively concealed Ashley 

Jest’s identity as the driver of the striking vehicle, and that they should be 

permitted to add her as a defendant, Appellants rely on DeRugeriis v. 

Brener, 348 A.2d 139 (Pa. Super. 1975) (concluding the defendant actively 

concealed the identity of the driver of the striking vehicle where: (1) the 

defendant and the actual driver were both in the vehicle at the time of the 
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accident; (2) the defendant and the actual driver had the same last name 

and were both male; (3) the parties engaged in ongoing communication 

after the accident; and (4) a police report of the accident did not exist.). Id. 

at 140. 

In the instant matter, Appellee was not in the vehicle at the time of 

the accident; Springfield police noted Ashley Jest’s identity as the driver of 

the striking vehicle in its police report; Appellee and Ashley Jest have 

different surnames and are different genders; no communication took place 

between the parties following the accident; and Springfield police prepared a 

an accident report immediately following the accident. Because the facts of 

DeRugeriis are distinguishable from those in the instant matter, we find 

DeRugeriis unpersuasive. 

Moreover, our review of the record reveals that Appellee provided 

Appellants with Ashley Jest’s identity as the driver of the striking vehicle as 

early as four months after Appellants filed their Complaint. On January 17, 

2014, Appellee responded to Appellants’ Interrogatories and Request for 

Production of Documents. In Appellee’s response, he identified Ashley Jest 

as the driver of the car that hit Appellants, and provided Appellants with a 

copy of the accident report prepared by the Springfield police officers who 
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responded to the accident and identified Ashley Jest as the driver.6 See

Appellee’s Answers to Interrogs. and Req. for Produc. Of Docs., 1/17/14. 

For the foregoing reasons, we agree with the trial court that Appellee 

did not conceal the driver’s identity from Appellants. See Trial Ct. Op. at 10, 

12-13.

Because Appellee did not conceal Ashley Jest’s identity as the driver of 

the striking vehicle, Appellants’ claim that the trial court erred in not 

permitting them to amend their complaint to add Ashley Jest as a party is 

wholly devoid of merit. As the trial court opined,

Appellants delayed in bringing their claim only eight days 

before the expiration of the statute of limitations. They 

further delayed in not seeking a timely amendment to 

include the proper defendant despite receiving Appellee’s 

response to interrogatories nineteen months prior to this 

[c]ourt’s Summary Judgment Order. Appellants have also 

failed to return the favor and provide any response to 

Appellee’s discovery requests. Furthermore, the identity of 

the correct defendant has been readily available to 

Appellants since the date of the accident in the form of the 

Springfield Police Report. It has now been over four years 

since the accident took place, more than two years beyond 

the statute of limitations.

Trial Ct. Op. at 14.

 

6 Appellee also submitted the affidavit of Ashley Jest in response to 

Appellants’ Motion for Reconsideration, in which Jest attested that she was 

operating the vehicle that was involved in the September 17, 2011 accident. 

She further attested that, immediately following the accident, she spoke face 

to face with the female passengers of the vehicle she struck for 

approximately fifteen minutes. See Appellee’s Resp. to Mot. for Recons. of 

Order for Summ. J., 9/2/15.
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The trial court did not abuse its discretion in denying Appellants’ 

belated request to amend the Complaint. 

In light of the foregoing, we conclude that the trial court properly 

granted summary judgment in favor of Appellee. 

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/19/2016