Superior Court of Pennsylvania, 2022

SMS Financial CH, LLC v. Bolus Truck Parts

Superior Court of Pennsylvania · Decided October 18, 2022 · Bender, P.J.E.

Opinion

J-S32030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 SMS FINANCIAL CH, LLC, ASSIGNEE : IN THE SUPERIOR COURT OF OF PNC BANK, N.A. : PENNSYLVANIA : : v. : : : BOLUS TRUCK PARTS & TOWING, : INC. AND ROBERT BOLUS : No. 542 MDA 2022 : Appellants : Appeal from the Order Entered March 7, 2022 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2017-00522

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: OCTOBER 18, 2022 Appellants, Bolus Truck Parts & Towing, Inc. and Robert Bolus, appeal from the trial court’s March 7, 2022 order granting Appellee’s, SMS Financial CH, LLC, Assignee of PNC Bank, N.A., motion to amend judgment. In granting Appellee’s motion, the trial court amended the judgment entered against Bolus Truck Parts & Towing, Inc., to reflect a judgment against Bolus Truck Parts & Towing Services, Inc. After careful review, we affirm.

The trial court sets forth a thorough recitation of the facts and procedural history of this matter in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (“TCO”), 4/29/22, at 2-7. On appeal, Appellants raise the following issues for our review: 1. Wether [sic] the [c]ourt erred when it found that Appellee had standing to bring the within action when it was a foreign J-S32030-22

corporation which had not registered to do business in Pennsylvania?

2. Wether [sic] the trial court erred in permitting the amendment of the caption to add a new party after the statute of limitations [sic]?

Appellants’ Brief at ii.1, 2

In Appellants’ first issue, they argue that the trial court “erred when it found that Appellee had standing to bring the within action when it was a foreign corporation which had not registered to do business in Pennsylvania.”

Id. at 3. They say that “Appellee has no right to bring any action within Pennsylvania in the absence of registering with the Department of State. The uncontradicted evidence shows significant activity within the [C]ommonwealth of Pennsylvania prior to bringing this action.” Id. at 5. According to Appellants, “[i]n the absence of the necessary registration, all efforts and filings made by Appellee should be stricken.” Id. Accordingly, they insist this action should be dismissed for lack of standing. Id. at 6.

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1 Though Appellants include a Statement of the Questions Involved section in their brief, they do not actually set forth any issues for our review therein.

See Appellants’ Brief at 3 (stating, inter alia, “Whether the trial court erred in?”). While we admonish Appellants for their lack of diligence in following our Rules of Appellate Procedure, see Pa.R.A.P. 2111, 2116(a), because we are able to glean from Appellants’ brief the issues they wish to raise, we will overlook their noncompliance in this regard. See Werner v. Werner, 149 A.3d 338, 341 (Pa. Super. 2016) (“Issues not presented in the statement of questions involved are generally deemed waived. However, such a defect may be overlooked where an appellant’s brief suggests the specific issue to be reviewed and [the] appellant’s failure does not impede our ability to address the merits of the issue.”) (cleaned up).

2 These questions are taken from the table of contents of Appellants’ brief.

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No relief is due on this basis. We have reviewed the detailed and well- reasoned opinion issued by the Honorable Julia K. Munley of the Court of Common Pleas of Lackawanna County. We conclude that Judge Munley’s opinion accurately and thoroughly disposes of the standing issue raised by Appellants. TCO at 8-11. Accordingly, we adopt her opinion as our own with respect to this issue.

In Appellants’ second issue, they aver that the trial court erred “in permitting the amendment of the caption to add a new party after the statute of limitations [had expired].” Appellants’ Brief at 6. They advance that “an amendment to a pleading that adds a new and distinct party once the statute of limitations has expired is not permitted[,]” and that “the test is ‘whether the right party was sued but under a wrong designation — in which event the amendment was permissible — or whether a wrong party was sued and the amendment was designed to substitute another and distinct party.’” Id. at 7 (citations omitted). Here, Appellants claim that the latter occurred, as Bolus Truck Parts & Towing Services, Inc. is purportedly a distinct entity from Bolus Truck Parts & Towing, Inc. Id. at 8. Thus, Appellants argue that the trial court should not have permitted the amendment. See id. at 9.

“It is settled that the trial court enjoys broad discretion to grant or deny a petition to amend pleadings. We therefore use an abuse of discretion standard in reviewing a trial court’s order granting or denying a petition to amend.” Thom v. CDM Auto Sales, 221 A.3d 681, 684 (Pa. Super. 2019) (cleaned up).

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Again, we have reviewed the opinion of Judge Munley and conclude that her analysis correctly disposes of Appellants’ amendment argument. See TCO 11-19.3 Therefore, we adopt her opinion as our own with respect to this issue as well.

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3 Judge Munley astutely observed in her opinion that, in Thom, this Court stated that, “under the current language of [Pa.R.Civ.P.] 1033(b), pleadings may not be amended to correct a party’s name if more than 90 days have passed since the expiration of the statute of limitations.” TCO at 15 (quoting Thom, 221 A.3d at 685; Judge Munley’s brackets omitted). However, Judge Munley went on to explain why Rule 1033(b) had nevertheless been satisfied in this case, despite the passage of time. See Pa.R.Civ.P. 1033(b) (“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.”); TCO at 17-18 (“[F]or the purposes of Rule 1033(b), Corporate Defendant received notice of the action [within the time afforded by the applicable statute of limitations,] and it was not prejudiced in maintaining a defense of the action on the merits. And further, based on the admission in [its] Answer, Corporate Defendant knew that the action would have been properly brought against it but for a mistake concerning the actual name of Corporate Defendant.”). We note that Appellants make no mention of Rule 1033(b) or Thom in their argument, and therefore they have waived any issues relating to them.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/18/2022

-5- Circulated 09/30/2022 09:48 AM

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