TT&H Attorneys Scott McCarroll and Shannon Harkins Win the Dismissal of a Million-Dollar Action Improperly Filed By a Partnership

Attorneys Scott McCarroll and Shannon Harkins recently won the dismissal of a million-dollar Dauphin County action which was improperly filed.  The Plaintiff, a partnership, instituted the action via Writ of Summons in the partnership name only.  Plaintiff later tried to amend by filing a Complaint in the name of its partners, trading as the partnership.  The amended caption was an attempt to comply with Rule 2127 of the Pennsylvania Rules of Civil Procedure, which requires that a partnership prosecute an action “in the names of the then partners trading in the firm name.”  The suit claimed alleged water intrusion, causing a purported $1.2 million in damages.

Scott and Shannon filed Preliminary Objections challenging the Plaintiff’s compliance with Rule 2127.  In response, Plaintiff argued that the Amended Partnership Act, 15 Pa.C.S. § 8620, permitted it to sue in its own name.  Plaintiff further argued that it could amend its pleading as a matter of right in response to Preliminary Objections.  The Court disagreed, finding that the issue was controlled by Rule 2127, while also finding that the Act is a procedural rule which impermissibly conflicts with Rule 2127.  The Court then dismissed Plaintiff’s suit, finding that the Writ of Summons was a nullity, while also noting that the attempted amendment occurred after the statute of limitations had expired.

Questions about this case can be directed to Scott McCarroll at (717) 237-7131 or smccarroll@tthlaw.com, or to Shannon Harkins at (717) 237-7147 or sharkins@tthlaw.com.