Lapenz, P. v. Brink, J.
245 WDA 2017
Pa. Super. Ct.Sep 29, 2017Background
- On June 9, 2010 Peggy Sue Lapenz’s car was struck in the rear at an intersection; the driver who identified himself at the scene was Justin Brink (twin of Dustin). No police report was made.
- Justin and his stepfather David Tiffany notified Erie Insurance (the insurer) within days and Erie took a recorded statement from Justin.
- Plaintiff later became uncertain whether the driver was Justin or his twin Dustin because she knew both names from work; a first-party medical adjuster (Sharon Russell) told her the driver was “Dustin.”
- Plaintiffs filed writs/summons in May–June 2012 and later a complaint naming Dustin Tiffany a/k/a Dustin Brink, David Tiffany, and Cheryl Tiffany; they sought in 2014 to amend to add Justin and drop Cheryl and to restate allegations against Dustin.
- Trial court denied the post‑statute amendment as time‑barred (no sufficient active concealment) and granted summary judgment for defendants; plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs may amend after SOL expired to add Justin | Tolled SOL by active concealment: Erie/defendants misidentified driver as Dustin (including insurer’s statement and failure to correct counsel’s letter) and David Tiffany’s conduct at service | No active concealment: Justin was correctly identified at scene; Erie’s first‑party adjuster’s mistake isn’t attributable to defendants; David didn’t know envelopes contained suit | Denied amendment — no active concealment shown; amendment would add a new party after SOL expired |
| Whether defendants waived the argument that the first‑party adjuster’s misstatement is not attributable to them | Plaintiffs: defendants waived that defense by not raising it in written response to motion to amend | Defendants: they preserved denial of concealment; specific attribution argument properly raised at hearing and not waived | No waiver; court properly considered attribution argument; plaintiffs bore burden to prove concealment and failed |
Key Cases Cited
- DeRugeriis v. Brener, 348 A.2d 139 (Pa. Super. 1975) (tolling SOL where defendant actively supplied wrong identity and withheld true identity until after limitations period)
- Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128 (Pa. Super. 2001) (no concealment where police report correctly identified driver and plaintiffs had means to discover identity)
- Diaz v. Schultz, 841 A.2d 546 (Pa. Super. 2004) (concealment doctrine tolled SOL where one party or its agents actively misled plaintiff about proper defendant)