FRETTS v. PAVETTI

PRICE, Judge:

Appellees brought suit for injuries incurred by Mrs. Fretts while she was shopping at appellant's store. A jury trial was commenced on February 7, 1978, and resulted in a $10,000 verdict in favor of appellees, $8,000 of which was awarded to Mrs. Fretts and $2,000 of which was awarded to Mr. Fretts for loss of consortium. Appellant challenges this award claiming that appellees' suit was barred by the statute of limitations, that remarks made during the closing argument were so prejudicial as to require the grant of a mistrial, that the jury was improperly permitted to consider damages for future pain and suffering, and that the verdict was excessive. We find that these contentions lack merit, and we affirm the judgment of the court of common pleas.

Our examination of the initial question regarding the statute of limitations requires a brief recitation of the pertinent procedural history of this case. Appellees commenced this action by filing a complaint on May 24, 1976, against "Stop N Shop, a corporation," alleging that on June 1, 1974, due to the negligent operation of a large stock cart by company employees, Mrs. Fretts was struck on the back of the leg and was injured. The answer filed in response to this complaint denied, inter alia, that such a corporation existed and stated that the business in question was operated by Mark A. Pavetti, trading and doing business as "Scottdale Stop N Shop."

On July 13, 1976, after the expiration of the applicable two year statute of limitations, appellees petitioned the court for leave to amend their complaint to name Mark A. Pavetti as sole proprietor of Scottdale Stop N Shop, a/k/a Stop N Shop. Following argument, the court of common pleas issued an opinion and order denying permission to amend on the ground that the amendment would, in effect, introduce a new party into the action after the statute of limitations had run. Thereafter, appellees petitioned for reargument, which petition was granted by the court. On February 25, 1977, a court en banc ruled without opinion that the petition to amend was granted and issued an order granting the Petition to Amend.

Act of June 24, 1895, P.L. 236, § 2, 12 Pa.C.S.A. § 34 (the two year statute of limitations for personal injury actions has since been repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[807], effective June 27, 1978, and a two year period of limitation is now imposed by 42 Pa.C.S.A. § 5524).

Appellees filed an amended complaint, and appellant in his answer once again asserted the two year statute of limitations. Following denial of his motions for a compulsory non-suit and judgment non obstante veredicto, appellant now raises this issue on appeal.

The question for our determination is "`whether the right party was sued but under a wrong designation, or whether a wrong person was sued and the amendment was designed to substitute another and distinct party.'" Paulish v. Bakaitis, 442 Pa. 434, 440, 275 A.2d 318, 321 (1971), quoting Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 29, 53 A.2d 73, 76 (1947). In the former situation amendment of the complaint should be permitted, despite the running of the statute of limitations, but permitting amendment in the later circumstance would be improper. Paulish v. Bakaitis, supra; Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963).

In resolving this sometimes thorny issue of post-statute of limitations amendment, the Supreme Court of Pennsylvania has found it useful to examine the entities involved before and after the proposed amendment. 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 e.g., an amendment to change the party designation from a corporation to a partnership, the amendment is properly permitted. See e.g., Gozdonovic v. Pleasant Hills Realty Co., supra; McGinnis v. Valvoline Oil Works, Ltd., 251 Pa. 407, 96 A. 1038 (1916). Such an amendment to name the partnership, and not involving the individuals trading as a partnership, is not an attempt to impose liability on the individual members of the partnership and enlarge the assets subject to liability to include their individual property. Instead, the action is continued against a business entity and the assets subject to liability remain the same. Paulish v. Bakaitis, supra; Powell v. Sutliff, supra.

The court of common pleas relied extensively on this line of analysis in formulating its initial decision to reject the amendment. It concluded that an amendment directing the suit against an individual rather than the originally designated corporation would add a separate and distinct party. While we agree that the foregoing principles may lead to that result, see Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911) (amendment that sought to substitute individuals for a corporation properly refused), we find that the instant case is governed by Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952), in which the supreme court carved out circumstances that would make it proper to permit an amendment whose effect is to substitute an individual for a business entity.

In Waugh, plaintiff brought suit against the Steelton Taxicab Company, designating it as a corporation. The complaint was served at the company's business office and upon an employee. After the statute of limitations had run, plaintiff discovered that no such corporation existed and that the name was instead employed by an individual in the conduct of his business. The court held that plaintiff was entitled to amend and, in so doing, remarked on its concern that plaintiff's error in pleading might have resulted from deception, whether intended or not, on the part of defendant. The court noted that the word "company" used in the name of a business enterprise reasonably suggests a corporation, absent any indications to the contrary. In the interests of justice, the court felt that an innocent person who has been deprived of his day in court as a result of such deception should be permitted to file the necessary amendment to bring him back into court.

The instant case presents us with an analogous set of facts. The court en banc, ruling on the post-verdict motions, found that Pavetti had registered in compliance with the Fictitious Names Act to conduct the business in question under the name "Scottdale Stop N Shop," but that the store was actually operated only under the name "Stop N Shop." Thus, when appellees' counsel searched the fictitious names register and failed to discover any listing for "Stop N Shop," he logically assumed, having no notice to the contrary, that the business was a corporation and brought suit using that designation. In the same manner that the plaintiff in Waugh was deceived by the use of the word "company" in the name of the business enterprise, appellees were misled by the use of the name "Stop N Shop" when it was not properly registered, and they should not be prevented thereby from pursuing their action.

Act of May 24, 1945, P.L. 967, § 1, as amended September 23, 1959, P.L. 936, § 1; September 30, 1965, P.L. 571, §§ 1, 2, 54 Pa.C.S.A. § 28.1.

An additional circumstance that parallels the facts of Waugh and brings this case within the ambit of its rule is that the corporation named did not actually exist and Pavetti has been the only person involved since the outset of this action. The supreme court in Waugh found that this fact served to distinguish cases in which the plaintiff endeavored to include, by amendment, business partners who previously would not have been personally liable for any judgment returned against the company initially named. The court emphasized that " there was no entity as [that initially named] apart from the personality of [the individual sought to be named]." Waugh v. Steelton Taxicab Co., supra, 371 Pa. at 440, 89 A.2d at 529. Like the defendant in Waugh, Pavetti was properly served at the location of his business and was not a new party. Therefore, the court of common pleas properly found that the statute of limitations would not prevent this amendment.

The court of common pleas, in its December 29, 1976 opinion denying the petition to amend, placed heavy reliance on Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971). The court quoted a portion of that case which stated that the principle of denying permission to amend after the running of the statute of limitations when a new party would be named was followed in " Waugh v. Steelton Taxicab Company, 371 Pa. 436, 89 A.2d 527 (1952), disallowing a post-statute of limitations amendment from company to individual. . . ." 442 Pa. at 441, 275 A.2d at 321 (emphasis added). This is a misstatement of the holding in Waugh, which allowed the amendment. This error may account for the court of common pleas' failure to address the similarities between Waugh and the instant case and for its later permission to amend.

Appellant's second contention concerns allegedly prejudicial remarks made by appellees' counsel during his closing argument. Immediately following the closing argument, appellant moved for withdrawal of a juror and a mistrial, which motion was denied by the trial judge. Since the closing address had not been recorded, appellant's counsel filed, subsequent to the verdict, an affidavit setting forth his recollection of the remarks he found objectionable in opposing counsel's argument. This procedure was insufficient to preserve the issue for our review.

Our supreme court has reiterated that an objection to an unrecorded argument must be made during the argument at the time of the challenged remark to assure an adequate and accurate record on appeal. Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287 (1976). In Commonwealth v. King, 227 Pa. Super. 168, 323 A.2d 260 (1974), this court delineated the proper method to be used when objecting to statements made during an unrecorded address:

"In order to avail himself of the right to object to improper remarks or a misstatement of fact or an unfair comment, counsel must object and move for the withdrawal of a juror, whereupon the court should direct the stenographer to place upon the record the court's understanding of the remarks so that error may properly be assigned if the motion to withdraw the juror is denied. Commonwealth v. Mika, 317 Pa. 487, 177 A. 3 (1935). If the court refuses to direct the stenographer to place upon the record remarks to which objection has been made, the opposing counsel may place the remarks on the record by affidavit."

227 Pa.Super at 172, 323 A.2d at 262.

Since appellant's counsel waited until the conclusion of the address to make his objection, it was untimely and his contentions are waived.

Appellant's third assignment of error challenges the trial court's decision to allow the jury to consider future pain and suffering as an element of damages. Mrs. Fretts testified at trial that she continues to experience pain and a stinging sensation in the back of her leg where she was hit by the stock cart. Her leg and ankle are also likely to swell if she remains on her feet for any time. She stated that two or three nights a week she has difficulty sleeping because her leg aches, and that she has to take a sleeping tablet to get to sleep. She further testified that she wears either elastic or support hose to prevent her leg from hurting. The doctor who had treated Mrs. Fretts after the accident, Doctor Rosemary Pritts, testified on cross examination that the injury had cleared up and that the scarring and lump that had formed from the impact of the cart, other than being readily visible would not permanently affect the leg. However, Doctor Pritts also testified that such an injury can aggravate varicose veins, a condition to which Mrs. Fretts is subject, and cause swelling. Moreover, the doctor stated that she had not examined Mrs. Fretts since February 7, 1975, three years prior to the date of trial and nine months following the accident. After February, Mrs. Fretts' primary physician, for whom Doctor Pritts had been substituting, returned and resumed care of Mrs. Fretts.

For a jury to be permitted to consider future pain and suffering as an element of damages, competent testimony demonstrating a likelihood that the condition will persist in the future must be present, and the jury must reasonably be able to infer from this testimony the probable future consequences of the condition. Expert testimony is not required to predict the exact result anticipated, but more than a mere possibility or fear of future consequences must be shown. Baccare v. Mennella, 246 Pa. Super. 53, 369 A.2d 806 (1976).

In light of Mrs. Fretts' testimony concerning her pain and suffering, there was sufficient evidence on the record to submit this issue to the jury. This testimony was not contradicted by that of the doctor. Although Doctor Pritts stated that the wound had healed, leaving a hematoma, or lump, and scarring as the only permanent conditions, she also pointed out that this type of injury aggravates varicose veins and causes swelling. As Mrs. Fretts testified, she experiences periods of pain and discomfort due to the swelling of her leg, even though it is not a constant condition. Furthermore, the fact that Mrs. Fretts was particularly susceptible to serious injury by her contact with the cart will not limit appellant's liability because negligence causing aggravation of a pre-existing condition subjects a tortfeasor to the same degree of liability as the infliction of an original wound. The tortfeasor must take his victim as he finds him. Pavorsky v. Engels, 410 Pa. 100, 188 A.2d 731 (1963); Lebesco v. Southeastern Pennsylvania Transportation Authority, 251 Pa. Super. 415, 380 A.2d 848 (1977).

Finally, appellant argues that the jury's verdict of $10,000 based upon provable medical expenses of $97.17, was patently excessive. We must disagree.

Our reluctance to interfere with a jury verdict that has been assailed as excessive but sustained by the trial court has been repeated frequently. Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979); Simmons v. Mullen, 231 Pa. Super. 199, 331 A.2d 892 (1974). The grant or refusal of a new trial on this ground is within the discretion of the trial court and will not be reversed absent a clear abuse of discretion. Albert v. Alter, 252 Pa. Super. 203, 381 A.2d 459 (1977). Disparity between out-of-pocket expenses and the amount of the verdict is not sufficient basis to award a new trial, and on appeal we will not find a verdict excessive unless it is so grossly excessive as to shock our sense of justice. Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965); Kravinsky v. Glover, supra.

Even though each case must be decided according to its unique and special circumstances, we have compiled a list of relevant factors in determining the excessiveness of a verdict. These factors include: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or merely subjective testimony; (3) whether the injury will permanently affect the plaintiff; (4) whether the plaintiff can continue his employment; (5) the size of out-of-pocket expenses occasioned by the injury; and (6) the amount demanded in the original complaint. Robert v. Chodoff, 259 Pa. Super. 332, 393 A.2d 853 (1978); Kemp v. Philadelphia Transportation Co., 239 Pa. Super. 379, 361 A.2d 362 (1976).

In the instant case, these factors weigh in favor of upholding the verdict. Mrs. Fretts was required to spend a full month confined to her bed and a month and one-half on crutches. This course of treatment indicates the severity of her injury. Objective evidence of the injury, a visible lump and scarring, was offered to the jury. Since Mrs. Fretts is fifty-nine and a housewife, her earning capacity was not affected by this injury, but it has affected her enjoyment of life in that she is no longer capable of activities in which she engaged prior to the accident, such as swimming. Although out-of-pocket expenses in this case were minimal, there was considerable testimony in this case concerning pain and suffering. We have previously noted the difficulty in achieving precision in calculating appropriate compensation because one cannot discern the amount of pain and suffering that was endured merely by considering the expenses incurred. See Zagari v. Gralka, 264 Pa. Super. 239, 399 A.2d 755 (1979); Robert v. Chodoff, supra; Pape v. Short, 28 Pa. D. C.2d 581 (C. P. Allegheny Co. 1961), aff'd., 199 Pa. Super. 617, 186 A.2d 431 (1962). As a final consideration, appellees in their original complaint requested damages in excess of the $10,000 they received. Thus, the record convinces us that the jury was not acting in such an irrational or unduly sympathetic manner that justice was denied, and the verdict will not be disturbed.

In accord with the above reasoning, we affirm the judgment of the Court of Common Pleas.

CAVANAUGH, J., files a dissenting opinion.