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J. A48014/00
2001 PA Super 156
LARRY FERRARO and KATHLEEN :
IN THE SUPERIOR COURT OF
FERRARO,
:
PENNSYLVANIA
Appellants :
:
:
v.
:
:
:
LORETTA MCCARTHY-PASCUZZO,
:
Appellee
:
No. 1134 EDA 2000
Appeal from the Orders entered on
November 17, 1999 and February 28, 2000
in the Court of Common Pleas, Philadelphia County,
Civil Division, No. 0496 June Term 1999
BEFORE: FORD ELLIOTT, J., EAKIN, J., and CERCONE, P.J.E.
OPINION BY CERCONE, P.J.E.:
Filed: May 21, 2001
¶ 1
Appellants, Larry Ferraro and his wife, Kathleen Ferraro, appeal the
order entered November 17, 1999, which denied their petition to amend
their complaint, and the order of February 28, 2000 which granted summary
judgment in favor of Appellee, Loretta McCarthy-Pascuzzo. For the reasons
that follow, we affirm.
¶ 2
The relevant facts and procedural history of the case are as follows.
This case arises from an accident that occurred on July 24, 1997, when Larry
Ferraro, a pedestrian, was struck by a motor vehicle operated by Michael
Pascuzzo. The police department arrived at the scene of the accident and
prepared a report specifically identifying the operator of the vehicle as
Michael Pascuzzo. See Police Incident Report, attached as Exhibit A to
Defendant's Answer to Plaintiff's Petition to Amend, filed November 12,

J. A48014/00
1999. The incident report included the name and policy number of Mr.
Pascuzzo's insurance carrier, USAA Casualty Insurance Company (USAA),
and also listed two witnesses to the accident. The police report does not
reference Loretta McCarthy-Pascuzzo, Michael Pascuzzo's wife.
¶ 3
The Ferraros subsequently retained an attorney, Vincent Ciecka,
Esquire, who negotiated with USAA for damages resulting from the accident.
A letter dated March 8, 1998, from Kevin James, a claims adjuster for USAA,
to Attorney Ciecka states that after investigating the accident, USAA found
that Larry Ferraro darted into traffic against the red light. See Letter dated
3/8/98, attached as part of Exhibit B appended to Defendant's Answer to
Plaintiff's Petition to Amend, supra. Accordingly, USAA declined to pay any
damages due to the accident. This letter references Loretta McCarthy-
Pascuzzo as the policyholder, along with the reference number for the file,
the date of loss, the loss location, and also lists Larry Ferraro as the client of
Attorney Ciecka. Id. The letter does not, however, in any way specifically
identify Loretta McCarthy-Pascuzzo as the driver of the vehicle at the time of
the accident. Two (2) other letters written by Mr. James to Attorney Ciecka
and three (3) letters from Mr. James to the Ferraros' former attorney,
Attorney Robert Brown, also referenced Loretta McCarthy-Pascuzzo as the
policyholder but in no way identified or insinuated that she was the driver at
time of the accident. See Exhibit B, supra, Letters dated 12/15/97, 2/2/98,
10/19/98, 7/31/98 and 2/18/99.
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¶ 4
On June 9, 1999, the Ferraros filed a complaint in the Philadelphia
Court of Common Pleas, naming Loretta McCarthy-Pascuzzo as the sole
defendant and identifying her as the driver of the vehicle which struck Larry
Ferraro at the time of the accident. See Complaint filed 6/9/99 at ¶' s 5-6.1
Counsel for Loretta McCarthy Pascuzzo entered her appearance on July 15th,
1999. On August 20, 1999, after the statute of limitations expired, Loretta
McCarthy-Pascuzzo, through counsel, filed an answer and new matter
specifically denying that she was the operator of any vehicle involved in the
accident, and raising, inter alia, the statute of limitations as a defense. See
Answer filed 8/20/99, at ¶'s 5-6. On October 12, 1999, the Ferraros filed a
petition to amend the complaint requesting that all prior references to
Loretta McCarthy-Pascuzzo be amended to reflect that Michael Pascuzzo was
the proper party to the action. In their petition, the Ferraros acknowledged
that Loretta McCarthy-Pascuzzo was misidentified as the driver in the
complaint. See Petition to Amend filed, 10/12/99, ¶ 7. Loretta McCarthy-
Pascuzzo opposed the petition, and on November 17, 1999, the Ferraros
petition to amend was denied by the Honorable Pamela Pryor Dembe of the
Court of Common Pleas of Philadelphia.
¶ 5
On January 10, 2000, Loretta McCarthy-Pascuzzo filed a motion for
summary judgment, arguing in support thereof that no evidence existed to

1 Mrs. Ferraro's claim for damages was a derivative claim for loss of
consortium due to her husband's injuries.
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show that she was a proper party to the suit, and that there was no legal
basis to continue the lawsuit against her. On February 28, 2000, the
Honorable Allan Tereshko of the Court of Common Pleas of Philadelphia
granted the motion for summary judgment. This timely appeal followed.
¶ 6
In this appeal the Ferraros present three (3) issues for our
consideration:
A. Did the trial court err and/or abuse its discretion by
denying Plaintiff's Petition to Amend their Complaint to
properly identify Michael Pascuzzo as the driver of the motor
vehicle in Plaintiff's Complaint when it was clear that defense
counsel knew of the misidentification, referred to Loretta
McCarthy-Pascuzzo as the driver and purposely requested an
extension of time to file an answer until after the Statute of
Limitations? 2
B. Did the trial court err and/or abuse its discretion in
granting Defendant's Motion for Summary Judgment in that
the tactics of defense counsel lulled Plaintiff's attorney about
the identity of the driver and that Defendant is estopped from
averring that Loretta McCarthy-Pascuzzo was the driver of the
motor vehicle for purposes of this law suit?

2 The Trial Court in its Rule 1925 opinion expressed its belief that Appellants
should have immediately appealed the order of November 17, 1999 denying
their petition to amend the complaint. However, we note that the Appellants
were unable to immediately appeal the denial of the petition to amend as it
was an interlocutory order. "In general, orders which deny or grant a
party's request to amend the pleadings are interlocutory and, therefore, not
immediately appealable." Borough of Mifflinburg v. Heim, 705 A.2d 456,
462 (Pa.Super. 1997); See also Explanatory Note to Pa.R.A.P. 341
(explaining that an order denying a petition to amend a complaint is one of
the specific types of orders which are not considered final orders subject to
an immediate direct appeal). Thus Appellants properly waited until the entry
of summary judgment to appeal the Trial Court's ruling on their petition to
amend.
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C. Did the trial court err and/or abuse its discretion by
denying Plaintiff's Petition to Amend their Complaint to
properly identify Michael Pascuzzo as the driver of the motor
vehicle in Plaintiff's Complaint by not applying New Jersey
substantive law which liberally allows amendments to relate
back to the original date of the pleading since both parties to
the lawsuit were New Jersey residents and insured by New
Jersey policies?3
Appellant's Brief at 2.
¶ 7
First, we note the applicable standards of review. The decision of the
trial Court to deny a motion to amend a complaint is within the sound
discretion of the trial court, and the trial court's determination will not be
disturbed absent an abuse of that discretion. Heim, supra, 705 A.2d at 463,
citing Sejpal v. Corson, Mitchell, Tomhave & McKinley, M.D.'S., Inc.,
665 A.2d 1198 (Pa.Super. 1995).
¶ 8
"On an appeal from a grant of summary judgment, a reviewing court
must examine the record in a light most favorable to the nonmoving party,
accepting as true all well-pleaded facts and giving that party benefit of all
reasonable inferences which can be drawn from those facts." Brezinski v.
World Truck Transfer, 755 A.2d 36, 38 (Pa.Super. 2000). As our Court
has stated previously:
Summary judgment may be properly entered only where
(1) there is no genuine issue of material fact as to a
necessary element of the cause of action which could be
established by additional discovery or an expert report, or (2)
after completion of discovery and production of expert
reports, an adverse party who will bear the burden of proof at

3 We have renumbered Appellant's issues for the purposes of our
discussion.
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J. A48014/00
trial has failed to produce evidence of facts essential to the
cause of action.
Heller v. U.P.S., 754 A.2d 689, 693 (Pa.Super. 2000), citing Campanaro
v. Pennsylvania Electric Company, 738 A.2d 472, 475-476 (Pa.Super.
1999), appeal denied, 561 Pa. 684, 751 A.2d 183, in turn citing Pa.R.C.P.
1035.2.
¶ 9
A trial court's decision to grant summary judgment will be overturned
only if there has been an error of law or clear abuse of discretion. Heller,
754 A.2d at 693. Our scope of review in these matters is plenary. Id.
Thus, "we are not bound by a trial court's conclusions of law; instead, we
may draw our own inferences and reach our own conclusions." Borden,
Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa.Super. 1997), appeal
denied, 555 Pa. 725, 725 A.2d 178 (1998), citing Butterfield v. Giuntoli,
670 A.2d 646 (Pa.Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 875
(1996).
¶ 10 Since the instant case is a personal injury action it is subject to a two-
year statute of limitations. See 42 Pa.C.S.A. § 5524 (2). The statute of
limitations in this case expired on July 24, 1999, two years after the accident
in which Mr. Ferraro was injured. Consequently, in October of 1999, at the
time the Ferraros sought to amend the complaint to substitute Michael
Pascuzzo as the defendant, the statute of limitations for the Ferraros' claims
had expired.
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¶ 11 Pennsylvania Rule of Civil Procedure 1033 provides that a party, by
consent or leave of court, "may at any time change the form of action,
correct the name of a party or amend his pleading." Pa.R.C.P. 1033.
However, amendment of a complaint after the statute of limitations has
expired will not be permitted where the amendment attempts to bring a new
party into the action. As our Court has stated in a prior case:
A plaintiff may not add a new defendant after the applicable
statute of limitations has expired. Hoare v. Bell Telephone
Co. of Pennsylvania , 509 Pa. 57, 500 A.2d 1112 (1985);
Zercher v. Coca-Cola USA, 438 Pa. Super. 142, 651 A.2d
1133 (1994). Thus, in cases where the statute of limitations
has expired and a party seeks to amend its pleading to
correct the name of party, the issue is whether the proposed
amendment adds a new party to the litigation or merely
corrects a party name. Jacob's Air Cond. v. Assoc.
Heating, 366 Pa. Super. 430, 433, 541, 531 A.2d 494, 496
(1987). "If an amendment constitutes a simple correcting of
the name of a party, it should be allowed, Wicker v.
Esposito, 500 Pa. 457, 457 A.2d 1260 (1983), but if the
amendment in effect adds a new party, it should be
prohibited. Cianchetti v. Kaylen, 241 Pa. Super. 437, 361
A.2d 842 (1976)." Jacob's Air Cond. v. Assoc.
Heating,supra, 366 Pa. Super. at 433, 531 A.2d at 496.
Zercher v. Coca-Cola USA, supra, 438 Pa. Super. at 146,
651 A.2d at 1135. If the proper party was sued but under
the wrong designation, the correction will be allowed.
However, where the wrong party was sued and the
amendment is designed to substitute another, distinct party,
it will be disallowed. Hamilton v. Bechtel, 441 Pa. Super.
390, 657 A.2d 980 (1995).
Anderson Equipment Co. v. Huchber, 690 A.2d 1239, 1241 (Pa.Super.
1997) (footnote omitted). Our review of the record in the instant matter
indicates that this is a situation in which the wrong party was initially sued,
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J. A48014/00
and the substitution of another distinct party was attempted after the
statute of limitations had expired.
¶ 12 The facts of the case at bar are similar to those of Saracina v. Cotia ,
417 Pa. 80, 208 A.2d 764 (1965). In that case, the plaintiff was struck by
an automobile and sustained injuries. The plaintiff filed a complaint naming
one "Anthony Cotoia, a minor" as the owner and operator of the vehicle
which struck him. Id. at 81, 208 A.2d at 765. After the statute of
limitations had expired, the named defendant, Anthony Cotoia, filed an
answer alleging that he was not a minor and that he was not operating the
vehicle at the time and place of the accident, but rather that the vehicle was
being operated by his son, Robert. The plaintiff filed a petition to amend the
complaint to inter alia change the name of the named defendant from
Anthony Cotoia to Robert Cotoia. The trial court denied permission to
amend the complaint and the Pennsylvania Supreme Court affirmed.
¶ 13 The Court said:
While there are strong indications in this case that Saracina
intended to bring suit against the operator of the vehicle,
Robert Catoia, an amendment of the complaint, after the
statute of limitations has run, to bring in a new and distinct
party to the action cannot be permitted.
* * * * *
The effect of allowing an amendment in this case would be to
introduce a new party after the statute of limitations has run
and, in effect, to modify the statute of limitations which this
Court cannot and should not do.
If the right party was in court as the result of service of
process and it was merely his or its designation which was
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J. A48014/00
sought to be changed, we would be prone to permit the
amendment. However, in the case at bar service was made
on "Anthony Cotoia the within named defendant, . . . by
handing a true and attested copy . . . to his father an adult
member of his household, at his place of resident . . ." The
return in no way indicates that Robert Catoia was properly
served and is now before the Court. . . . We, therefore, find
that the court below was correct in refusing to permit the
complaint to be amended so as to change the proper name of
the defendant from Anthony Catoia to Robert Catoia.
Id. at 83-84, 208 A.2d at 766.
¶ 14 Another case presenting factual circumstances analogous to the case
at bar is Hamilton v. Bechtel, 657 A.2d 980 (Pa.Super. 1995), appeal
denied, 542 Pa. 639, 666 A.2d 1049 (1995). In that case the plaintiffs, the
Hamiltons, initiated a lawsuit against the defendants, the Bechtels, for
injuries Mrs. Hamilton sustained in an automobile accident. In the complaint
which was filed, the Hamiltons averred that it was John Bechtel who
negligently operated his vehicle causing it to impact with the vehicle Mrs.
Hamilton was driving. The Bechtels filed an answer to the complaint
averring that the owner and operator of the vehicle was not John Bechtel but
William Bechtel. A police report which was prepared at the time of the
accident also identified William Bechtel as the owner and operator of the
vehicle. Nevertheless, in spite of the answer which was filed and the
preexisting police report, the Hamiltons did not amend their complaint
before the statute of limitations had expired. After a year had passed, the
Hamiltons filed a petition to modify which was denied by the Trial Court.
Our Court affirmed. We said:
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J. A48014/00
It is the duty of the party asserting a cause of action to use all
reasonable diligence to properly inform himself of the facts
and circumstances upon which the right of recovery is based
and to institute suit within the prescribed period. Hayward
v. Medical Center, 530 Pa. 320, 608 A.2d 1040, 1042
(1992) citing Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d
267, 269 (1963). Thus, the statute of limitations begins to
run as soon as the right to institute and maintain a suit
arises; lack of knowledge, mistake or misunderstanding do
not toll the running of the statute of limitations. Hayward,
608 A.2d at 1042 citing Pocono International Raceway,
Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468,
471 (1983).
Appellants, in the instant case, had the opportunity
before the statute of limitations ran, to discover the identity
of the correct party. We, therefore, find that the court below
was correct in refusing to permit the complaint to be
amended in order to change the proper name of the
defendant from John Bechtel to William Bechtel.
Id. at 982-983.
¶ 15 The Ferraros cite the cases of DeRugeriis v. Brener, 348 A.2d 139
(Pa.Super. 1975), appeal dismissed, 471 Pa. 103, 369 A.2d 1215 (1977) and
Lafferty v. Alan Wexler Agency, 574 A.2d 671 (Pa.Super. 1990) in
support of their argument that they are entitled to amend the complaint.
However, these cases are distinguishable on their facts. In DeRugeriis, the
plaintiff filed suit to recover for injuries arising out of an automobile
accident. After the statute of limitations had expired the defendant sought
to dismiss the complaint on the basis that the plaintiff had named the wrong
party. However, the trial court allowed the plaintiff's complaint to be
amended after the statute of limitations had run due to the actions of the
defendant. The defendant had actively concealed the true identity of the
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driver and even went so far as to supply the plaintiff with an incorrect name
for the driver. Unlike the case sub judice, there was no police report
prepared at the time of the accident which identified the driver. We affirmed
the decision of the trial court and held that the running of the statute of
limitations was tolled due to the conduct of the defendant. In Lafferty, we
again held that amendment of a complaint after the statute of limitations
had run was permissible because the evidence clearly demonstrated that the
defendant originally named in the plaintiff's complaint had actively misled
the plaintiff as to the true identity of the correct defendant. In the instant
case, the police report correctly identified the driver, and no evidence has
been presented that the identity of the driver, Michael Pascuzzo, was
concealed by Loretta McCarthy-Pascuzzo, or anyone on her behalf, or that
the Ferraros were actively misled despite the Ferraros' bald allegations to
the contrary.
¶ 16 The Ferraros have argued that USAA and McCarthy-Pascuzzo's
attorney misrepresented the identity of the driver of the vehicle, inducing
Ferraro to believe the driver was Loretta McCarthy-Pascuzzo. Although the
Ferraros point to no specific act of misrepresentation on the part of
McCarthy-Pascuzzo's attorney, they contend that USAA misrepresented in
their written correspondence that Loretta Pascuzzo-McCarthy was the driver
of the vehicle. In a somewhat novel argument, the Ferraros contend this
misrepresentation serves to estop Loretta McCarthy-Pascuzzo from legally
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J. A48014/00
denying that she was in fact the driver of the vehicle at the time of the
accident. Appellant's Brief at 14. We note parenthetically that any such
misrepresentation, if it were shown to be true by competent evidence of
record, would serve only to toll the statute of limitations and permit an
amendment of the complaint to reflect the proper defendant. De Rugeriis,
Lafferty, supra. However the remedy for this type of alleged
misrepresentation does not extend to permitting a cause of action to
proceed in a court of law against an individual such as Mrs. Pascuzzo, whom
all parties agree was not involved in the accident and who can in no way be
held legally responsible for the Ferraros' damages.
¶ 17 Moreover and importantly, contrary to the Ferraros' argument, the fact
that USAA's correspondence reflects the policyholder as Loretta McCarthy-
Pascuzzo has no bearing on the identity of the driver at the time of the
accident, particularly whenever the police report specifically listed the driver
and did not mention Mrs. Pascuzzo at all. Nowhere in the record does USAA,
or the McCarthy-Pascuzzo's attorney, specifically refer to the driver of the
automobile as Loretta McCarthy-Pascuzzo. Thus, we see no evidence that
McCarthy-Pascuzzo's counsel or USAA actively attempted to conceal or
mislead the Ferraros as to the identity of the driver of the vehicle.
¶ 18 The Ferraros are advancing an identical argument as the plaintiffs
advanced in Hamilton, supra. In that case the Hamiltons had argued
strenuously that they had been misled since the insurance carrier had
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J. A48014/00
specifically referred in all of its correspondence only to its named insured,
John Bechtel, and never mentioned the driver of the vehicle involved in the
accident, William Bechtel, by name. Id., 657 A.2d at 982. The Hamiltons
contended that this amounted to "concealment" and fraudulent conduct on
the part of the insurance company which should have estopped the
insurance company from asserting the defense of the expiration of the
statute of limitations. Id. Our Court, however, did not accept this argument
and declined to find that the insurance company's reference only to its
named insured in written correspondence was fraudulent conduct on its part
which would serve to estop it from raising the statute of limitations. Id.
¶ 19 In an attempt to bolster their argument, the Ferraros assert that
although the correct driver is listed in the police report, "it is common
knowledge that incident reports often contain mistakes" and therefore it was
reasonable not to rely on such information. Appellant's Brief, at 13 fn. 1.
We find this position unpersuasive. Simply put, there can be no
concealment by the named defendant where the driver is correctly named in
the police report.
¶ 20 The Ferraros alternatively contend that their counsel granted
McCarthy-Pascuzzo an extension of time to file an answer even though her
counsel knew of the misidentification and knew the extension meant that
Ferraro would not be informed of his error until after the expiration of the
statute of limitations. We see no evidence of record to support this assertion
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J. A48014/00
that this was counsel's motivation in seeking the extension which she did
upon entering the case. Moreover, this contention does not alter the
inescapable fact that the Ferraros had ample time and means to ascertain
the proper identity of the driver prior to the expiration of the statute of
limitations and to properly name Mr. Pascuzzo as the defendant in the
complaint. The Ferraros were on notice as to the identity of the driver, and
they failed to use reasonable diligence in correctly naming the defendant in
the complaint. Thus, the Trial Court did not abuse its discretion in refusing
to allow them to amend their complaint. The entry of summary judgment
was therefore also proper since Mrs. McCarthy-Pascuzzo was not the proper
party to be sued, and the statute of limitations had run before Mr. Pascuzzo
could be added as a defendant. Finn v. Dugan, 394 A.2d 595, 597
(Pa.Super. 1978).
¶ 21 In an attempt to circumvent the bar of the statute of limitations the
Ferraros have also advanced the contention that New Jersey "substantive
law" applies to the instant case. Appellants specifically contend that the
Philadelphia Court of Common Pleas should have applied New Jersey Rule
of Civil Procedure 4:9-3, which, by their interpretation, would have
allowed Appellants to amend their complaint. This particular rule provides:
4:9-3. When Amendments Relate Back
Whenever the claim or defense asserted in the amended
pleading arose out of the conduct, transaction or occurrence
set forth or attempted to be set forth in the original pleading,
the amendment relates back to the date of the original
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pleading; but the court, in addition to its power to allow
amendments may, upon terms, permit the statement of a
new or different claim or defense in the pleading. An
amendment changing the party against whom a claim is
asserted relates back if the foregoing provision is satisfied
and, within the period provided by law for commencing the
action against the party to be brought in by amendment, that
party (1) has received such notice of the institution of the
action that the party will not be prejudiced in maintaining a
defense on the merits, and (2) knew or should have known
that, but for a mistake concerning the identity of the proper
party, the action would have been brought against the party
to be brought in by amendment.
New Jersey Rules Governing Civil Practice in the Superior Court, Tax Court
and Surrogates Court, Rule 4:9-3.
¶ 22 The Ferraros cite no relevant authority to our Court to explain why a
New Jersey Rule of Civil Procedure should be applied by a Pennsylvania
Court to govern the conduct of a civil proceeding which was originated by
them in a Pennsylvania Court and which has at all times remained within the
jurisdiction of the Pennsylvania Court System. We note that, despite the
citation to the above quoted New Jersey Rule of Procedure, the thrust of
Appellant's argument is that the substantive law of New Jersey should
govern this lawsuit due to the parties alleged "significant contacts and
relationships" with that state. Appellant's Brief at 10. However, Appellant
has confused the concepts of procedural and substantive law. Substantive
law is the portion of the law which creates the rights and duties of the
parties to a judicial proceeding, whereas procedural law is the set of rules
which prescribe the steps by which the parties may have their respective
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rights and duties judicially enforced. Blacks Law Dictionary, Seventh
Edition at 1221, 1443. Whenever Pennsylvania is the chosen forum state for
a civil action, our state's procedural rules i.e. the Pennsylvania Rules of Civil
Procedure govern, no matter what substantive law our courts must apply in
resolving the underlying legal issues. Rocker v. Harvey, 535 A.2d 1136,
1140 (Pa.Super. 1988); Kaiser v. Western States Administrators, 702
A.2d 609, 612 (Pa.Cmwlth. 1997); C.f. Smith v. Commonwealth
National Bank, 557 A.2d 775 (Pa.Super. 1989) (trial court applied
Pennsylvania procedural law to determine if entry of summary judgment was
proper even though insurance agreement contained language indicating that
it was to be governed by the laws of New York); Commonwealth v.
Sanchez, 552 Pa. 570, 575, 716 A.2d 1221, 1223 (1998) ("In conflicts
cases involving procedural matters Pennsylvania will apply its own
procedural laws whenever serving as the forum state."); Larrison v.
Larrison, 750 A.2d 895, 898 (Pa.Super. 2000) (same); Crawford v.
Manhattan Life, 221 A.2d 877, 883, n.3 (Pa.Super. 1966) (procedural
questions are determined by the law of the forum). Thus, the Trial Court
properly considered whether amendment of the Ferraros' complaint was
proper under Pennsylvania Rule of Civil Procedure 1033 and properly
considered whether the entry of summary judgment was warranted under
Pennsylvania Rule of Civil Procedure 1035.2. New Jersey's Rules of
Procedure governing the manner in which lawsuits commenced in that
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state's court system are to be handled have no applicability whatsoever to
this proceeding.
¶ 23 The cases upon which Appellant relies, Normann v. Johns-Manville
Corp., 593 A.2d 890 (Pa.Super. 1991), appeal denied, 530 Pa. 645, 607
A.2d 255 (1992) and Cutitta v. Selective Insurance Co. of America, 255
N.J.Super. 252, 604 A.2d 989 (App.Div. 1992) do not compel a different
result. In Normann our Court was faced with the issue of what state's
substantive law to apply in determining the liability of an asbestos
manufacturer. In Cuttita the issue before a panel of the New Jersey
Superior Court was whether a motorist could compel arbitration of his claim
for medical damages under the terms of his insurance policy and under New
Jersey's uninsured/underisured motorists statute. In interpreting the statute
the New Jersey Court looked to New York law for the proper construction of
its terms since the statute was deliberately patterned after New York law.
The present case involves no similar question of statutory interpretation and
hence Cuttita has no applicability.
¶ 24 In sum, we agree with the Trial Court that The Ferraros merely sued
the wrong individual, despite the correct information contained in the police
report. Further, there is no valid basis given for any alleged inability to
correctly identify the defendant within the two-year statute of limitations.
Accordingly, we affirm the order denying the petition to amend, and affirm
the order granting summary judgment.
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¶ 25 Orders affirmed.
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