J-A23010-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BRIAN FLANAGAN 

Appellant

v.

MINE RUN, INC. D/B/A EAGLE 

STREAM APARTMENTS,

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 187 EDA 2017

Appeal from the Order Entered December 14, 2016

In the Court of Common Pleas of Montgomery County Civil Division at 

No(s): 2015-31734

BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.

DISSENTING STATEMENT BY DUBOW, J.: FILED DECEMBER 20, 2017

I respectfully dissent and would affirm the trial court’s denial of 

Appellant’s Motion to Amend the Complaint.

The relevant facts are as follows. Appellant fell on January 23, 2014, at

the Eagle Stream Apartments. On December 8, 2015, Appellant filed his

Complaint against “Mine Run, Inc. d/b/a Eagle Stream Apartments” as the 

sole defendant. On January 26, 2016, Mine Run, Inc., filed Preliminary 

Objections, arguing that Mine Run, Inc., does not own the property and the 

fictitious name of “Eagle Stream Apartments” is not registered to Mine Run, 

Inc. At this point, more than two years had elapsed since Appellant’s fall, so 

the statute of limitations had run and, thus, any claims against entities whom 

Appellant did not name in its Complaint would be barred. 
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On February 6, 2016, Appellant attempted to correct his error by filing

a First Amended Complaint. Appellant removed “Mine Run, Inc.” from this 

version of the Complaint and changed the caption of the Complaint. The 

caption merely named “Eagle Stream Apartments” as the defendant; it did not 

name Eagle Stream Trust as a defendant. The only mention of Eagle Stream 

Trust is in one allegation where Appellant alleged that Eagle Stream Trust 

operates Eagle Stream Apartments. See First Amended Complaint, ¶ 8. 

Appellant had not sought leave of court to file his First Amended Complaint. 

On April 6, 2016, over two months after the statute of limitations had 

run, Appellant filed a Motion for Leave to File an Amended Complaint and 

attached to the motion a Second Amended Complaint. In that Motion, 

Appellant described his request as “not add[ing] a new party to the complaint, 

but only serves to clarify the name of the Defendants operating as Eagle 

Stream Apartments[.]” Motion to Amend, ¶ 23.

The Second Amended Complaint again names “Eagle Stream 

Apartments” as the sole defendant and identifies it as “a business entity 

and/or fictitious name for a business entity which operates Eagle Stream 

Apartments at 313 Conestoga Way, Eagleville, Pennsylvania.” (Second 

Amended Complaint, ¶ 2). Appellant removed from the Second Amended 

Complaint the allegation that Eagle Stream Trust operates the Eagle Stream 

Apartments.
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When analyzing whether the plaintiff can amend a Complaint to change 

the name of the defendant after the Statute of Limitations has run, we must 

examine the “entities involved before and after the proposed amendment.” 

Fretts v. Pavetti, 422 A.2d 881, 882. (Pa. Super. 1980) (emphasis in the 

original). When the original complaint seeks to impose liability against the 

assets of a business entity and the amendment is designed merely to correct 

the description of the business entity already made a party to the proceedings, 

the amendment is properly permitted. Id. In other words, the amendment 

is permissible when “the action is continued against a business entity and the 

assets subject to liability remain the same.” Id. (emphasis in the original).

In this case, the only defendant Appellant named in the original 

Complaint was “Mine Run, Inc. d/b/a Eagle Stream Apartments.” The Second 

Amended Complaint named “Eagle Stream Apartments.” Since Mine Run, Inc. 

has no connection to Eagle Stream Apartments, the assets of Mine Run, Inc. 

do not remain “subject to liability” in the Second Amended Complaint and the 

trial court properly denied Appellant’s Motion to Amend the Complaint.

I also disagree with the Majority’s reliance on Clark v. Wakefern Food 

Corp., 910 A.2d 715 (Pa.Super. 2006). In Clark, the plaintiff filed the 

Complaint against the correct fictitious party, but wrong corporate entity, 

Wakefern Food Corp. (“Wakefern”). Appellant selected Wakefern because 

Wakefern’s insurance agent identified Wakefern as the correct corporate 

entity. Plaintiff’s counsel discovered the error after the statute of limitations 
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had run and filed a Motion to File an Amended Complaint, which would be filed 

against the correct corporate entity. This Court held that the plaintiff could 

amend the Complaint after the Statute of Limitations has elapsed to include 

the correct corporate entity because an agent for Wakefern misidentified the 

correct corporate entity and the plaintiff relied upon that information. 

In this case, there was no evidence that any party misled Appellant to 

believe that it was Mine Run, Inc. who was the owner or operator of Eagle 

Stream Apartments. Thus, Clark is inapplicable. 

Finally, I disagree with the relief the Majority appears to grant in this 

case. The Majority, when discussing its approval of the dismissal of Mine Run, 

Inc. from this case, refuses to permit the dismissal of the owner and operator 

of Eagle Stream Apartments: 

Mine Run is certainly entitled to be dismissed as a defendant, based 

upon the record currently before us. But the owner and operator of 

Eagle Stream Apartments at the time of Flanagan’s fall is not. 

Majority Opinion, page 12 (emphasis added).

I disagree. First, it is unclear which entity is the owner and operator of 

Eagle Stream Apartments. It could be Eagle Stream Trust;

1

it could be 

Sunderland Properties, Inc.

2 or it could be some other entity. All we know is 

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1 The deed to the property on which Eagle Stream Apartments was built 

indicates that the owner of the property is Eagle Stream Trust.

2 The Pennsylvania Bureau of Corporations indicates that Sunderland 

Properties, Inc. registered the fictitious name for “Eagle Stream Apartments” 

and is located at the same address as Eagle Stream Apartments.
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that it is not Mine Run, Inc., and since the statute of limitations has run, 

Appellant is barred from instituting suit against any other entity who is the 

“owner and operator of Eagle Stream Apartments.”

I, therefore, would affirm the trial court’s decision to deny Appellant’s 

Motion for Leave to file an Amended Complaint.