TT&H Attorneys Laura Herzog and Bernie Kwitowski Win Judgment on the Pleadings Where Plaintiffs Failed to Properly and Timely Replace a Doe Designation with Defendant’s Actual Name

Laura Herzog and Bernie Kwitowski, both of the firm’s Allentown, PA office, recently won judgment on the pleadings in a Northampton County trip and fall case. Plaintiffs filed the suit shortly before expiration of the applicable two-year statute of limitations. In their Complaint, the Plaintiffs sued Saucon Valley Properties, LLC, Kratzenberg & Associates, Inc., John Doe(s) 1-5, and ABC Corporation(s) 1-5. After answers were served by Saucon Valley and Kratzenberg, the Plaintiffs directed written discovery requests to those parties. In responding to the same, Saucon Valley disclosed that B.F. Brown & Company had done paving work in the area where Plaintiff fell. Approximately two and a half months later, the Plaintiffs entered into a Stipulation with Saucon Valley and Kratzenberg, which purported to substitute B.F. Brown for ABC Corporation 1. Plaintiffs then served B.F. Brown, who answered the Complaint and moved for judgment on the pleadings.

In seeking judgment on the pleadings for B.F. Brown, Attorneys Herzog and Kwitowski argued that the Plaintiffs failed to comply with Rule 2005 of the Pennsylvania Rules of Civil Procedure. While that rule does allow for the use of Doe designations, it sets forth a number of specific requirements that must be followed. Among other things, where the plaintiff uses a Doe designation, due diligence must be exercised in identifying the defendant’s actual name. Further, after the defendant’s actual name has been identified, the rule gives the plaintiff twenty days within which to file a motion to amend the complaint, replacing the Doe designation with the defendant’s actual name. Along with that motion, the rule also requires an affidavit “describing the nature and extent of the investigation that was made to determine the identity of the defendant, and the date upon and manner in which the defendant’s actual name was identified.” Pa.R.Civ.P. 2005(c).

In their Motion for judgment on the pleadings, Attorneys Herzog and Kwitowski successfully argued that the Plaintiffs could not circumvent the requirements of Rule 2005 by filing a Stipulation. Plaintiffs did not move to amend their Complaint and did not file an affidavit describing the investigation made to determine B.F. Brown’s actual name. Further, the Plaintiffs did not act in a timely manner after learning of B.F. Brown’s actual name. While Rule 2005 requires a Motion to amend within twenty days of identification of the defendant’s actual name, the Stipulation in the instant case was filed nearly two and a half months after B.F. Brown was identified in Saucon Valley’s discovery responses. Given Plaintiffs’ failure to comply with Rule 2005, the Court agreed with Attorneys Herzog and Kwitowski and entered judgment on the pleadings in favor of their client. The Court also denied the Plaintiffs’ alternative request for leave to amend nunc pro tunc.

Questions about this case can be directed to Bernie Kwitowski at (610) 332-7018 or bkwitowski@tthlaw.com.