Heybach & Sons, Inc. v. Rascal's Tavern

—This is an action wherein plaintiff seeks to amend the caption to indicate the “proper” name of defendant. Judgment by default was entered against the designated defendant “Rascal’s Tavern” on November 18, 1980 for defendant’s failure to answer the complaint in assumpsit. Plaintiff therefore is actually petitioning to amend a judgment and to bind a new party, F.M.T., Inc., t/a The Waiting Room, to that default judgment.

Plaintiff cites Pa.R.C.P. 1033 as authority for its petition to amend. Pa.R.C.P. 1033, however, provides for the liberal amendment of captions or pleadings, and not judgments. This court is convinced that changing the judgment to read F.M.T., Inc., t/a The Waiting Room, without allowing that party the opportunity to respond to the complaint, would be improper and unfair. As the statute of limitations has not yet run on the action underlying the original complaint, plaintiff may file a new action against the properly named party, who may then respond as it so chooses.

Accordingly, the following order is entered.

ORDER

And now, March 26, 1981, it is hereby ordered and decreed that plaintiffs petition to amend name of defendant after judgment by default is dismissed.