Lebanon Transit, v. Rental Finance Corporation

JUDGE’S OPINION

Lebanon Transit, v. Rental Finance Corporation

 

Civil Action-Law-Motor Vehicle Accident-Default Judgment-Incorrect Identification of a Party-Motion to Amend Identification of Party-Statute of Limitations-Reasonable Diligence-Sanctions-Dilatory, Vexatious and Obdurate Conduct-Reasonable Counsel Fees

 

This action arises out of a traffic accident in which it is alleged that a vehicle owned and leased by Rental Finance Corporation (“Defendant”) struck a vehicle owned by Lebanon Transit (“Plaintiff”).  Plaintiff alleged that the operator of Defendant’s vehicle did not have insurance coverage or a valid driver’s license and negligently operated the vehicle when it collided with Plaintiff’s vehicle.  Default judgment was entered against Defendant based upon failure to respond to the litigation, and damages were assessed after hearing at which Defendant did not appear.  Discovery occurred in aid of execution thereafter, at which time Defendant asserted that the correct name of Defendant entity is Rental Car Finance Corporation that subsequently converted to Rental Car Finance, LLC, and Dollar Rental Car, an affiliate of Hertz, owned the vehicle that struck Plaintiff’s vehicle.  Plaintiff has filed Motions to Amend Judgment to change the captioned name of Defendant to Rental Car Finance, LLC, and for sanctions against Defendant and its counsel.

 

1. Pa.R.C.P. Rule 1033(a) provides that a party may at any time change the name of a party or otherwise amend a pleading with the filed consent of the adverse party or leave of court.

 

2. Rule 1033(b) further provides that an amendment correcting the name of a party in the original pleading relates back to the date of the commencement of the action if, within ninety (90) days after the period provided by law for commencing the action, the party received notice of the action such that it would not be prejudiced in maintaining a defense and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

 

3. Amendment may occur even after the entry of default judgment against the party.

 

4. It is the duty of a party asserting a cause of action to use all reasonable diligence properly to inform the party of the facts and circumstances upon which the right to recovery is based and to commence suit within the prescribed period.

 

5. Amendment to correct the name of a business entity already party to the action is permissible, but amendment designed to substitute a distinct party for one already named is not permitted after the running of the statute of limitations.

 

6. The statute of limitation will not bar amendment of a party where a defendant actively has misled the other party into believing that the correct defendant has been named.

 

7. In light of the fact that Defendant did not have an excuse for its failure to appear to defend the Complaint, Defendant was served with the Writ of Summons within the two (2) year statute of limitations for negligence from the date of the accident, Defendant filed pleadings under the incorrect name identified in the Complaint, agents of Defendant were aware of the case against Defendant and should have known that the owner of the vehicle would have been named correctly but for a mistake in the police report that named the owner of the vehicle as “Rental Finance Corporation,” the Motion to Amend the name of Defendant as requested is warranted.

 

8. Pa.R.C.P. Rule 1023.1(c) requires that every pleading be signed by an attorney or a pro se litigant certifying that the pleading is not presented for an improper purpose such as to harass, cause unnecessary delay or needlessly increase litigation costs and the facts alleged have evidentiary support.

 

9. The court may impose an appropriate sanction upon counsel and parties who have violated the requirements of Rule 1023.1(c) after notice and a reasonable opportunity to respond.

 

10. Defense counsel cannot be subject to sanctions for violating Rule 1023.1(c), as defense counsel were not served with a written notice and demand by Plaintiff to correct the documents submitted to the Court that are alleged to have been without evidentiary support and for the purpose of unnecessary delay.

 

11. A court may award reasonable counsel fees to a party as a sanction for the other party’s dilatory, obdurate or vexatious conduct during the pendency of a matter.

 

12. Where the record establishes that Defendant through its agents and counsel sought to delay execution of the default judgment by refusing to answer discovery in aid of execution, filing under an incorrect name in pleadings where it admitted it owned the vehicle that struck Plaintiff’s vehicle and put forth unsubstantiated claims of bankruptcy, Defendant has engaged in obdurate and dilatory conduct warranting sanctions in the form of reasonable attorney’s fees.

 

L.C.C.C.P. No. 2018-01205, Opinion by Charles T. Jones, Jr., Judge, July 20, 2021.

 

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

LEBANON TRANSIT,                                        :

Plaintiff,                                                                :

:

1. :     Docket No.: 2018-01205

:

RENTAL FINANCE CORPORATION,             :

Defendant.                                                            :

 

ORDER OF COURT

 

AND NOW, to wit, this 20th day of July, 2021, after careful consideration of the record, the Parties’ filings, briefs, and oral argument, the Court Orders as follows:

1. Plaintiff’s Motion to Amend Judgment is GRANTED. The Prothonotary of Lebanon County Court of Common Pleas is hereby directed to amend the captioned name of Defendant, “Rental Finance Corporation,” to the correct name of Defendant, “Rental Car Finance, LLC.” The default judgment in this matter remains enforceable against the Defendant entity.
2. Plaintiff’s Motion for Sanctions as to Defense Counsel for violation of Pa. R.C.P. 1023.1 is DENIED for failure to serve the written notice and demand for withdrawal or correction required by that rule.
3. Plaintiff’s Motion for Sanctions as to Defendant is GRANTED pursuant to 42 Pa. C.S. §2503(7). The Court will schedule a hearing to determine the sole issue of Plaintiff’s reasonable counsel fees as a result of Defendant’s conduct.

BY THE COURT:

 

____________________________, J.

CHARLES T. JONES, JR.

CTJ/cbm

cc:  Sean Summers, Esq. // Summers Nagy Law Offices, 200 Spring Ridge Drive, Suite 202, Wyomissing PA 19610

Laurie Carroll, Esq. // Pillinger Miller Tarallo, LLP, 1880 John F. Kennedy Blvd., Suite 1803, Philadelphia, PA 19103

Court Administration (Order Only)

Caitlin Mininger, Esq./Law Clerk

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL ACTION – LAW

 

LEBANON TRANSIT,                                      :

Plaintiff,                                                               :

:

1. :     Docket No.: 2018-01205

:

RENTAL FINANCE CORPORATION,         :

Defendant.

 

APPEARANCES:

 

Sean Summers, Esquire                               For Plaintiff

 

Laurie Carroll, Esquire                                For Defendant

 

OPINION BY JONES, JR. J. (July 20, 2021):

There are two related motions before the Court. The first is Plaintiff’s February 3, 2021 Motion to Amend Judgment to change the captioned name of the defendant entity from Rental Finance Corporation to Rental Car Finance, LLC. The second is Plaintiff’s February 2, 2021 Motion for Sanctions against the defendant entity and defense counsel.

Factual and Procedural History

The post-judgment litigation in this matter has been lengthy. In some instances the mere fact that something was sworn as true before the Court was questioned. Therefore, the Court will take pains to lay out the facts of the case as thoroughly as possible.

Defendant Rental Car Finance, LLC[1] has in past filings to the Court identified itself as an entity that engages in the trade or business of renting or leasing motor vehicles nationally. Plaintiff, Lebanon Transit, is a Pennsylvania Municipal Authority in Lebanon County. The underlying claim arose from a traffic accident that occurred at the intersection of 10^th and Chestnut Streets in the City of Lebanon on August 17, 2016. A 2015 Jeep Compass owned and leased by the defendant entity struck a bus owned by Plaintiff. Jose Otero-Perez, the defendant individual named in this case, was the driver of the rental car. The Complaint alleged that Otero-Perez did not have insurance coverage or a valid driver’s license, and had driven the wrong way down a one way street before running a red light and hitting the Lebanon Transit bus.

Plaintiff initiated this action on July 13, 2018 by Writ of Summons against Jose Otero-Perez, Rental Finance Corporation, and Hertz. The Sheriff’s return of service entered on the docket on August 8, 2018 reflects that Jose Otero-Perez was out of the country and therefore not served with the writ. The return of service reflects that Rental Finance Corporation and Hertz were served at 900 Doremus Avenue, Newark, New Jersey by certified mail delivered on July 25, 2018. After 2018, the following salient events occurred:

• January 7, 2019: Plaintiff filed the Complaint against Jose Otero-Perez and Rental Finance Corporation. Count I alleged that Defendant Otero-Perez was negligent in operating the vehicle and caused the damage to Plaintiff’s bus. Count II of the Complaint alleged that the defendant entity was negligent in entrusting the vehicle to Otero-Perez because it should have known he was not fit to operate the vehicle. Neither Defendant filed an Answer in response to the Complaint.
• April 5, 2019: Plaintiff filed a praecipe to enter Default Judgment against the defendant entity only. Plaintiff also filed a motion and praecipe for a Hearing to Assess Damages. Counsel for Plaintiff certified that notice of both praecipes and the motion was sent by first class mail to Rental Finance Corporation at the 900 Doremus Avenue address, as well as to Counsel for Mr. Otero-Perez.
• April 8, 2019: The Prothonotary entered Judgment by Default against Rental Finance Corporation.
• May 20, 2019: Plaintiff filed the Motion to Assess Damages again, this time with a praecipe for a hearing pursuant to Lebanon County local rules. Plaintiff’s Counsel certified that notice of the motion had been sent by first class mail on April 5, 2019, and notice of the new praecipe had been sent to Rental Finance Corporation at the 900 Doremus Avenue address, as well as to Mr. Otero-Perez’s attorney, on May 14, 2019.
• June 21, 2019: The Court (Hon. Charles T. Jones, Jr., J.) held a hearing to assess damages and, based on testimony presented, found damages in the amount of $85,486.44 for the traffic accident, towing, and repair of the bus. The Defendant entity did not appear. Additionally, the Court found that Jose Otero-Perez had not been originally served on this docket. Plaintiff has pending cross-claims against Mr. Otero-Perez in cases where they are both named as defendants by passengers of the Lebanon Transit bus. Thus, Plaintiff moved to withdraw its complaint against Mr. Otero-Perez.
• June 24, 2019: The Court (Hon. Charles T. Jones, Jr., J.) ordered the complaint against Mr. Otero-Perez withdrawn. A separate court order entered this date entered damages against Rental Finance Corporation in the amount of $85,486.44.
• November 27, 2019: Counsel for the defendant rental company filed a Petition to Open/Strike Judgment. The Petition to Open/Strike Judgment identified Defendant as Rental Finance Corporation, with a place of business at 900 Doremus Avenue, Newark, New Jersey. The Petition argued that Defendant had valid and meritorious defenses: (1) liability of the lessor of a vehicle for the actions of the operator is barred under federal law, and (2) negligent entrustment under Pennsylvania law requires a finding of negligence on the part of the person entrusted.[2] The Petition also argued that Defendant had an acceptable and reasonable explanation for the default: it had not received the original Complaint, Praecipe to Enter Default Judgment, or Notice of Entry of Default Judgment Plaintiff’s Counsel had sent to the 900 Doremus Avenue address. The Petition stated that Defendant had received the Praecipe for Hearing sent by Plaintiff, submitted it to its insurance carrier, and relied on the insurance carrier to represent it in the matter.
• November 29, 2019: The Court issued a Rule to Show Cause, ordering Plaintiff to file an answer addressing why Defendant was not entitled to opening or striking the judgement.
• December 19, 2019: Plaintiff filed a Response in Opposition to the Petition. The Response argued that Defendant had not met the prompt filing and reasonable excuse prongs of the rule for opening default judgment. Specifically, Plaintiff argued Defendant had not filed promptly when the petition to open judgment was filed seven months after entry of the default judgment. Plaintiff also argued Defendant did not have an acceptable and reasonable explanation through ineffective service, because Defendant had received service sent by Plaintiff. Defendant’s Petition confirmed that the address Plaintiff sent service to was correct. After the Writ of Summons was served on Rental Finance Corporation, a claims adjuster for Defendant contacted Plaintiff’s counsel on August 8, 2018 with full awareness of the allegations and the internal claim number. On March 9, 2019 the insurer faxed back to Plaintiff’s Counsel the ten day notice of default. And on May 8, 2019 the insurer sent the Praecipe to Enter Judgment back to Plaintiff’s The police report for the accident attached as an exhibit to Plaintiff’s response to the petition indicates that Rental Finance Corp. was the name of the owner of the Jeep driven by Mr. Otero-Perez.[3]
• March 6, 2020: The Court heard oral argument on the Petition to Open/Strike Judgement. At oral argument, Defense Counsel argued that the address where Plaintiff served notice was not Defendant’s place of business, contrary to the Petition and the Brief in Support that stated Defendant had a place of business at 900 Doremus Avenue, Newark, New Jersey.
• May 28, 2020: The Court (Hon. Charles T. Jones, Jr., J.) denied the Petition to Open/Strike Judgment. In an Opinion accompanying the Order, the Court articulated that based on the petition, response, briefs, and oral argument, it found that the petition was not promptly filed and that Defendant did not have a reasonable excuse for failing to appear and answer the Complaint.
• June 15, 2020: Plaintiff filed a Motion for Interest and Costs, seeking $14.05 interest per day from the April 8, 2019 judgment as well as costs of $401.91 for proceeding in court.
• June 18, 2020: The Court issued a Rule to Show Cause on the Motion for Interest and Costs on June 18, 2020.
• June 19, 2020 Plaintiff filed a Motion to Compel Discovery, seeking to enforce Interrogatories and Requests for Production of Documents in Aid of Execution served August 9, 2019 and due September 9, 2019.
• June 24, 2020: The Court (Hon. John C. Tylwalk, P.J.) issued a Rule to Show Cause on the Motion to Compel Discovery on June 24, 2020.
• July 30, 2020: Plaintiff filed a Motion to Make the Rule Absolute under Lebanon County Local Rule 52-205.8 because Defendant had failed to respond after the Court’s Rule to Show Cause on the Motion to Compel Discovery.
• July 31, 2020: The Court (Hon. John C. Tylwalk, P.J.) granted the Motion to Make Rule Absolute, ordering Defendant to provide written discovery within 20 days.
• August 21, 2020: Plaintiff filed a Motion for Sanctions against Defendant due to Defendant’s failure to provide discovery as required by the July 31 Order. Plaintiff sought an estimated $1,500 in legal fees and costs and the production of complete, verified discovery responses.
• August 25, 2020: Plaintiff filed a Motion to Make the Rule Absolute under Lebanon County Local Rule 52-205.8 because Defendant had failed to respond after the Court’s Rule to Show Cause on the Motion for Interest and Costs.
• September 1, 2020: Plaintiff filed a Motion to Compel Deposition Testimony of Defendant Rental Finance Corporation. Plaintiff alleged that it had served Defendant with Notice to Deposition on or about August 21, 2020. The deposition was scheduled for August 31, 2020. Defendant responded by indicating that it did not have a corporate designee available. Given that written discovery was still overdue in violation of the Court’s July 31 2020 Order, Plaintiff alleged that it was prejudiced by Defendant’s refusal to participate in the discovery process. Plaintiff requested that the Court order Defendant to appear for a deposition within ten days without objection.
• September 2, 2020: The Court (Hon. Charles T. Jones, Jr., J.) granted the Motion to Make the Rule Absolute on the Motion for Interest and Costs. The amount of judgment as of August 31, 2020 was $94,793.60.
• September 23, 2020: Defendant filed a Response to the Motion to Compel Deposition Testimony and a Response to the Motion for Sanctions. These responses alleged for the first time that Rental Finance Corporation was not an entity, business, or association as defined by Pennsylvania law and therefore could not produce officers, employees, or designees for deposition, nor any documents to satisfy Plaintiff’s requests. The Response to the Motion for Sanctions also argued that the rental vehicle was owned by “Dollar Rental Car,” itself owned by Hertz, and that both Dollar Rental Car and Hertz were subject to a Chapter 11 Bankruptcy stay.
• September 29, 2020: Plaintiff filed a Motion for Sanctions against Defense Counsel on the basis of Counsel’s having represented in the verification clause of the Petition to Open/Strike Judgment and the two Responses filed September 23, 2020 that the facts within were true and correct to the best of her knowledge, information, and belief. Plaintiff argued that Defense Counsel had represented in the Petition to Open/Strike that she was the attorney for Rental Finance Corporation, that Rental Finance Corporation was the owner of the rental vehicle, and that Rental Finance Corporation had a place of business at 900 Doremus Avenue, Newark, New Jersey—all facts contradicted by the facts alleged and verified in the September 23, 2020 Responses. Given the contradiction, Plaintiff argued that Defense Counsel had, in violation of the Rules of Professional Conduct, either made a false statement to the Court as to the existence of Rental Finance Corporation in the Petition to Open/Strike, or Defense Counsel had made false and extremely misleading statements to the Court as to Rental Finance Corporation being a nonentity. Plaintiff also alleged Defense Counsel had made duplicitous, contradictory responses to Plaintiff’s Counsel with respect to producing a corporate designee for deposition, in violation of the Rules of Professional Conduct. Plaintiff sought an estimated $5,000 in legal fees and costs associated with Defense Counsel’s “obdurate, vexatious, and fraudulent conduct,” as well as a court order compelling responses to discovery and production of Defendant’s corporate designee for deposition.
• October 13, 2020: Hearing on the August 21, 2020 Motion for Sanctions against Defendant, September 3, 2020 Motion to Compel Deposition, and September 29, 2020 Motion for Sanctions against Defense Counsel. At the hearing, Defense Counsel represented that she learned in June of 2020, after the Hertz bankruptcy, that the correct name of the party was Rental Car Finance Corporation, and that a Rental Car Finance Corporation is registered to do business in both Pennsylvania and New Jersey. (Notes of Testimony, October 13, 2020, at 12–13, 16.) Defense Counsel also reiterated the claim from the Response to the Motion for Sanctions that Dollar Rental Car, an affiliate of Hertz, owned the car. (Notes of Testimony, October 13, 2020, at 32.)
• October 14, 2020: Entry of the Order dictated at the October 13 hearing. The Court ordered defense counsel to provide the name of, and present for deposition, 1) a person from the insurance company paying her bills, and 2) a person from the entity that owned the car, that is, the entity insured by the insurance company. The Court ordered defense counsel not to destroy, lose or misplace any information in her file regarding this case.[4] The Court deferred decision on an assessment of attorney fees and costs requested by the Motions for Sanctions, and gave leave for Plaintiff’s Counsel to file for a hearing if counsel could not reach an agreement on the fees between themselves. Defense Counsel was directed to receive service of subpoenas for the people to be deposed.
• November 11, 2020: Zoom Video Deposition taken of Dennis McGinley, according to Exhibit C of Plaintiff’s February 3, 2021 Motion for Sanctions. Mr. McGinley testified that he is an attorney, named as the corporate designee for Rental Car Finance Corporation. Mr. McGinley testified at the deposition that effective June 22, 2016, Rental Car Finance Corporation was converted to Rental Car Finance, LLC. (Plaintiff’s Motion for Sanctions of February 3, 2021, Exhibit C at 7.) Mr. McGinley’s understanding was that because the date of loss for the Jeep was after the date of the entity’s conversion, Rental Car Finance, LLC was the titled owner of the car. ( at 7–8.) Mr. McGinley is employed by Hertz Corporation at its headquarters in Florida as assistant general counsel and testified that Rental Car Finance, LLC is an indirect, wholly owned subsidiary of Hertz. (Id. at 9, 38.) He was able to provide Plaintiff’s Counsel with the names of the directors and officers of Rental Car Finance, LLC. (Id. at 10–11.) According to Mr. McGinley, Rental Car Finance, LLC has not filed for bankruptcy and is not included in the Hertz bankruptcy proceeding. (Id. at 13.) Mr. McGinley stated that Rental Car Finance, LLC is an entity that holds title to some unknown number of cars in Hertz and Dollar Rent-a-Car’s rental fleets, while the rental agreements are handled by Hertz and Dollar Rent-a-Car. (Id. 24–29.)
• November 24, 2020: Zoom Video Deposition taken of Jose Ramirez, according to Exhibit D of Plaintiff’s February 3, 2021 Motion for Sanctions. Mr. Ramirez is currently employed by ESIS Corporation, a third-party administrator for Hertz Corporation. (, Exhibit D at 3.) At the deposition, Mr. Ramirez stated that he became the claim adjustor for the claim in this case on June 4, 2019, after the people employed by Hertz who had been assigned to the claim were laid off by Hertz. (Id.) Back in 2016, Hertz had been using ESIS to handle claims, but also kept “a certain number of skeleton crew to work on the runoff,” which included the file for the claim associated with this case. (Id.) Mr. Ramirez stated that his goal as adjustor was to transfer defense of the claims associated with the accident to Mr. Otero-Perez’s insurance company in order to “get a dismissal for Hertz or any Hertz entity that could have been known then, regardless of name,” so he did not note the name of the defendant entity until he referred the claim to the defense attorney in October of 2019 (Id. at 4.) Mr. Ramirez stated at the deposition that defense counsel brought up the fact that the entity name was incorrect in November or October of 2019. (Id.) Mr. Ramirez believed that the correct name of the title holder of the car was Rental Car Finance Corporation, and it is his understanding that Rental Car Finance Corporation is “not a real company” because it is a shell company used by Hertz to register vehicles and does not have its own employees. (Id. at 5, 7.) He testified he had never heard of an entity called Rental Car Finance, LLC. (Id. at 5) The correct name of the entity in a case is not important for his work because under the usual course the adjustor either is able to get Hertz dismissed from the case or finds out the correct name through an insurance defense attorney. (Id. at 5.) Mr. Ramirez stated at the deposition that he had contacted Plaintiff’s Counsel in June 2019 when he was assigned to the case, and learned then that there was a judgment but that the exact amount was not yet determined. (Id. at 10.). On September 10, 2019, he received the Interrogatories in Aid of Execution sent by Plaintiff’s Counsel. (Id.) During this time, Mr. Ramirez stated, he was still trying to transfer the case to Mr. Otero-Perez’s insurance company and determine if Plaintiff’s Counsel had been in contact with that insurance company. (Id.) He referred the case to Defense Counsel in October 2019. (Id. at 4, 10.)
• February 3, 2021: Plaintiff filed the Motion to Amend Judgment currently before the Court, seeking to amend the captioned name of Defendant to Rental Car Finance, LLC in light of the deposition testimony from Mr. McGinley and Mr. Ramirez. Plaintiff also filed the Motion for Sanctions[5] currently before the Court. In addition to incorporating the allegations set forth in the August 2020 Motion for Sanctions, this Motion for Sanctions is brought on the basis of the two witness depositions and defense counsel each claiming the name of Defendant to be different things, the apparent gamesmanship of Defense Counsel leading to Plaintiff being unable to file an uncontested Motion to Amend, the false claims of bankruptcy apparently made to delay litigation in violation of Rule of Professional Conduct 3.2, and Defendant’s apparent disregard for the Court’s directives in this matter. Citing Pa. R.C.P 4019(c)(1)–(2) as the basis for the Court’s power to provide relief where sanctions are appropriate, Plaintiff now seeks, from Defendant and Defense Counsel jointly and severally, $20,000 in counsel fees and costs incurred as a result of Defendant and Counsel’s “obdurate, vexatious, and fraudulent conduct.”
• February 26, 2021: Defendant filed a Response and Memorandum of Law to Plaintiff’s Motion to Amend Judgment. The essence of Defendant’s argument is that Plaintiff’s Counsel did not do the due diligence that would have determined Defendant’s correct name prior to the running of the statute of limitations on this negligence action.
• March 3, 2021: Defendant filed a Response to Plaintiff’s February 3 Motion for Sanctions. Based on Defendant’s argument against the Motion to Amend Judgment, Defendant maintains that the Motion to Amend and the Motion for Sanctions are “frivolous and meant to harass” Defendant. Therefore, Defendant requested that it be awarded $6,000 in counsel fees and costs.
• March 8, 2021: Plaintiff’s Motion to Amend Judgment listed for April Term of Argument Court. Additionally, Plaintiff filed Proof of Service of Notice to Attend the scheduled March 23 Hearing on the Motion for Sanctions sent to Dennis McGinley c/o Laurie A. Carroll, Esq.; Jose Ramirez, c/o Laurie A. Carroll, Esq.; and Defense Counsel Laurie A. Carroll, Esq.
• March 11, 2021: Defendant filed a Motion to Quash the Notice to Attend for each of the people named by Plaintiff.
• March 12, 2021: Plaintiff filed its Brief in Support of its Motion to Amend Judgment per the briefing schedule for Argument Court.
• March 15, 2021: The Court entered three unsigned Orders, denying Defendant’s Motions to Quash the appearance of the people requested by Plaintiff at the March 23 Hearing on the Motion for Sanctions.
• March 23, 2021: The Court held a hearing on the February 3, 2021 Motion for Sanctions. Defense Counsel appeared as the attorney of record. Neither Dennis McGinley nor Jose Ramirez appeared to testify, apparently under advice of Defense Counsel. The Court took the matter under advisement and ordered Parties to file briefs by April 13, 2021.
• March 26, 2021: Defendant filed a Brief in Opposition to Plaintiff’s Motion to Amend, per the briefing schedule for Argument Court.
• March 31, 2021: Plaintiff filed a Motion for Continuance on its Motion to Amend Judgment. Oral Argument was continued until the May Term of Argument Court.
• April 13, 2021: Plaintiff and Defendant filed their Briefs on the Motion for Sanctions.
• April 15, 2021: Defendant filed a Supplemental Brief on the Motion for Sanctions in Reply to Plaintiff’s Brief.
• May 7, 2021: Oral Argument held on Plaintiff’s Motion to Amend Judgment.

Motion to Amend Judgment

Pennsylvania Rule of Civil Procedure 1033 states in relevant part:

(a) A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, add a person as a party, correct the name of a party, or otherwise amend the pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

(b) An amendment correcting the name of a party against whom a claim has been asserted in the original pleading relates back to the date of the commencement of the action if, within 90 days after the period provided by law for commencing the action, the party received notice of the institution of the action such that it will not be prejudiced in maintaining a defense on the merits and the party knew or should have known that the action would have been brought against the party but for a mistake concerning the identity of the proper party.

Pa. R.C.P 1033. The trial court has the discretion to amend pleadings at any time, including after judgment. Thom v. CDM Auto Sales, 221 A.3d 681, 685 (Pa. Super. 2019). Rule 1033 applies not only to pleadings, but all filings, including judgments. Id. A cause of action for negligence is governed by a two-year statute of limitations. 42 Pa. C.S. §5524(2). It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform themselves of the facts and circumstances upon which the right of recovery is based and to begin suit within the limitations period. Cappelli v. York Operating Co. Inc., 711 A.2d 481, 485 (Pa. Super. 1998). Under Pennsylvania’s “right party, wrong designation” rule, amendment to correct the name of a business entity already party to an action is permissible, but amendment designed to substitute another and distinct party for one already named should be prohibited after the statute of limitations has run. Phillips v. Lock, 86 A.3d 906, 915 (Pa. Super 2014); Powell v. Sutliff, 189 A.2d 864, 865 (Pa. 1963); Gozdonovic v. Pleasant Hills Realty Co., 53 A.2d 73, 76 (1947).

The Superior Court has refused to apply Rule 1033 in cases where a defendant has actively misled the plaintiff into believing the correct defendant has been named. Blaine v. York Fin. Corp., 847 A.2d 727, 729 (Pa. Super. 2004). The defendant’s actions in misleading the court need not be intentional. Id. Plaintiff bears the burden of proving active concealment through clear and convincing evidence. Id. Where a defendant or its agent misleads the plaintiff as to the identity of the proper defendants until after the statute of limitations has expired, the proper remedy is to toll the statute of limitations. Hubert v. Greenwald, 743 A.2d 977, 981 (Pa. Super. 1999). If, through fraud or concealment, the defendant causes the plaintiff to relax its vigilance or deviate from its right of inquiry, the defendant is estopped from invoking the bar of the statute of limitations. Molineux v. Reed, 532 A.2d 792, 794 (1987). Where the wrongdoer adds to their original fraud affirmative efforts to divert, mislead, or prevent discovery, they give to their original fraudulent act a continuing character that deprives them of the protection of the statute. Deemer v. Weaver, 187 A. 215, 216 (Pa. 1936).

Defendant does not contest that it owned the Jeep driven by Mr. Otero-Perez. [6] Neither does Defendant contest at this time that Rental Car Finance, LLC is its proper designation. Rather, Defendant argues that Plaintiff is time-barred from amending the captioned name in order to enforce the default judgment. Defendant maintains that because the Complaint and the Motion for Default Judgment occurred after the period for the Statute of Limitations, the statutory period to file an amendment to either has passed. According to Defendant, November 15, 2018 was the last day Plaintiff could have amended to correct the name of Defendant as it was ninety days after the run date of the Statute of Limitations. (Defendant’s Response ¶ 1–4.) In response, Plaintiff has cited a long record of failures to respond to discovery requests, even in the face of court orders, and apparent gamesmanship on the part of Defense Counsel, in order to make the case that concealment doctrine tolls the statute of limitations for purposes of amending the judgment. These arguments overcomplicate the issue.

Under Pennsylvania Rule of Civil Procedure 1033(a), a party may, by leave of court, correct the name of a party at any time. Such an amendment may occur even after the entry of default judgment against the party. See Thom, 221 A.3d at 685. Under Rule 1033(b), the correction of a name of a party will relate back to the commencement of the action when 1) a claim was asserted against the party in the original pleading, 2) the party received notice of the institution of the action within ninety days after the date the statute of limitations ran such that it would not be prejudiced in maintaining a defense on the merits, and 3) the party knew or should have known that the action would have been brought against it but for a mistake as to the identity of the proper party.

Here, the entry of default judgment means that Defendant did not bring a defense on the merits. However, failure to bring a defense on the merits does not necessarily mean that Defendant was prejudiced from doing so. In ruling on Defendant’s Petition to Open/Strike Judgment, the Court has already determined that Defendant did not have a reasonable excuse for its failure to appear. Moreover, the Sherriff’s Return indicates Defendant was served with the Writ of Summons that initiated the action on July 25, 2018. The accident occurred on August 17, 2016, so the two-year statute of limitations for this negligence action would have run on August 17, 2018. Defendant received notice of the initiation of the action well before the ninety days after the limitations period ran, which would have been November 15, 2018. The record indicates that agents of Defendant were aware of the case against Defendant, corresponding with Plaintiff’s Counsel with reference to the case caption and the internal claim number in early August 2018, and should have known that the owner of the car would have been named correctly but for a mistake. The mistake appears to arise from the original police report for the accident, which names the owner of the vehicle driven by Mr. Otero-Perez as “Rental Finance Corp.”

In bringing a Petition to Open/Strike, Defendant pled a meritorious defense and offered the Answer to the Complaint it would file should the Court open judgment—and most importantly, it filed under the name Rental Finance Corporation. Correcting its own name would have been an easier thing for Defendant to do at any time during proceedings than for Plaintiff, given that it took over a year of discovery requests and eventual court orders for Plaintiff to obtain the information necessary to know Defendant’s correct name. Meanwhile, there has been an entity litigating against the judgment, and no one involved in this case disputes that that entity is the one that owned the Jeep driven by Mr. Otero-Perez into a Lebanon Transit bus. The original pleading in this action asserted a cause of action against the party that owned of the Jeep, and Defendant, while apparently confused about its own name, does not deny that it is that party.

In its proposed Answer, the entity then holding itself out to the Court as Rental Finance Corporation admitted that it owned the car in question. Mr. McGinley’s deposition testimony indicates that the entity that owned the car was a Hertz subsidiary by the name of Rental Car Finance Corporation until June of 2016 when it was converted into Rental Car Finance, LLC. Mr. Ramirez’s deposition testimony indicates both that Hertz employees routinely handled the claims of Hertz’s subsidiaries and that Hertz employees were assigned to the claim for this case before it was assigned to him. Exhibits offered to the Court indicate that at least one such employee corresponded with Plaintiff’s Counsel about the case in August of 2018, after service of the Writ of Summons, using an ambiguous acronym Defendant points to as a smoking gun: RCF.

Defendant argues that it was Plaintiff’s Counsel who did not do the due diligence of determining Defendant’s name, and that the use of the acronym RCF as opposed to RFC should have tipped counsel off to inquire further. In the Court’s view, Plaintiff’s Counsel understood that they were in contact with an agent of the entity that owned the vehicle and that the agent was aware of the case Plaintiff had initiated against Defendant. The transposition of two letters in an acronym would not inspire suspicion in such an instance. In addition, Jose Ramirez testified at his deposition that while he knew after June 2019 that the owner of the car was some entity associated with Hertz, he did not pay attention to the exact identity of the owner because it was not relevant to the work of a claims adjustor, that is, attempting to transfer Hertz and its affiliate, regardless of name, out of the case. Furthermore, Defense Counsel has claimed that she did not learn the correct name until consulting with attorneys for Hertz in relation to the Hertz bankruptcy, in June of 2020. The least absurd and most equitable result on this Motion to Amend comes down to the observation that if Defendant’s agents and Defense Counsel do not know or inquire into Defendant’s correct name, then Plaintiff cannot reasonably be expected to find it out. This is particularly true in a situation where discovery procedures are Plaintiff’s best means of discovering a correct name and Defendant repeatedly refuses to provide discovery.

While the Court’s analysis does not hinge on concealment doctrine, the Court believes Plaintiff has met the burden of proof to show Defendant concealed its identity in such a way that would preclude it from asserting the statute of limitations as a defense to amendment. The August 2018 correspondence from the Hertz claims adjustor to Plaintiff’s Counsel using the RCF acronym obscures the proper name of the Hertz affiliate that owned the car. This initial, perhaps unintentional, concealment gains a continuing character based on Defendant’s affirmative efforts to divert, mislead, or prevent discovery after the statute of limitations ran. See Hubert, 743 A.2d at 981; Deemer, 187 a. at 216. According to Jose Ramirez’s deposition testimony, Defense Counsel did know prior to filing the Petition to Open/Strike Judgment that Rental Finance Corporation was not the correct name of the Defendant. Unfortunately, the Court did not have the opportunity to observe Mr. Ramirez testify as to these facts and judge his credibility from his demeanor. Defense Counsel failed to produce Mr. Ramirez for the March 23, 2021 Hearing—despite Plaintiff’s Notice to Attend directed at Mr. Ramirez and served on Defense Counsel, despite the Court expressing at the October 13, 2020 Hearing a desire to hear testimony directly from someone from the entity who hired Defense Counsel, and despite the Court’s denial of Defendant’s Motion to Quash the Notice to Attend for Mr. Ramirez. At the October 13, 2020 Hearing, the Court was willing to give Defense Counsel the benefit of the doubt that someone at the insurance company had given her false information as to the identity of the Defendant before she filed the Petition to Open/Strike Judgment on its behalf. Now, on the totality of the record, it appears there has been active concealment of Defendant’s correct name on the part of both Defendant and Defense Counsel. The name of Defendant could have been determined by Plaintiff had Defendant responded to discovery requests promptly, or had Defendant or Defense Counsel corrected the identity of Defendant in the Petition to Open/Strike Judgement. However, given the Court’s conclusions on Rule 1033(b), the analysis on concealment of Defendant’s identity is more relevant to Plaintiff’s Motion for Sanctions.

The record indicates that Plaintiff has brought its case against the right business entity under the wrong designation. The Complaint served on Defendant asserted negligent entrustment against the owner of the car that Defendant owned. Defendant had notice of the initiation of the action by Writ of Summons and its agent corresponded with Plaintiff’s Counsel about the action before ninety days after the running of the statute of limitations. The record indicates Defendant’s agents should have known that the correct entity name would have been used in the Complaint but for a mistake (and indeed acted as if the correct name had been used). With these three elements satisfied, Rule 1033(b) allows an amendment of the name of Defendant to relate back to the initiation of the action. Plaintiff has leave of court to amend the judgment to reflect the correct name of Defendant, dated back to the initiation of the action. Plaintiff’s Motion to Amend Judgment will be granted, and the captioned name of Defendant will be Rental Car Finance, LLC.

Motion For Sanctions

Plaintiff’s February 3, 2021 Motion for Sanctions incorporates the allegations laid out in its August 21, 2020 Motion for Sanctions. In ruling on the August 2020 and September 2020 Motions for Sanctions in October of 2020, the Court held the issue of a sanction in the form of counsel fees in abeyance. At that time, the Court gave Plaintiff leave to file for a hearing should counsel be unable to work out the issue of fees between themselves. Because Plaintiff has now filed a third Motion for Sanctions that incorporates the previous allegations, the Court will consider the issue of counsel fees for both motions, as well as for the September 29, 2020 Motion for Sanctions. Plaintiff’s Brief clarifies that Plaintiff seeks to sanction Defense Counsel under Pa. R.C.P. 1023.4 for violation of Pa. R.C.P 1023.1, relating to verification of a pleading, motion, or other paper filed in court. Plaintiff’s Motions seek to sanction Defendant for failing to answer discovery under Pa. R.C.P. 4019, and for “obdurate, dilatory, and vexatious” conduct, which is sanctionable under 42 Pa. C.S. §2503(7).

1. Whether the Court May Sanction Defense Counsel

Pennsylvania Rule of Civil Procedure 1023.1 requires every pleading, motion, or other paper directed to the court to be signed by an attorney of record or a pro se litigant. Pa. R.C.P. 1023.1(b). Such a signature certifies inter alia that after a reasonable inquiry under the circumstances and to the best of the signer’s knowledge, information, and belief, (1) the document is not being presented for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation, Pa. R.C.P. 1023.1(c)(1), and (2) the facts alleged have evidentiary support. Pa. R.C.P. 1023.1(c)(3). Should a court, “after notice and a reasonable opportunity to respond” to the alleged violation, determine that 1023.1(c) has been violated, it may “impose an appropriate sanction upon any attorneys, law firms and parties that have violated (c) or are responsible for the violation.” Pa. R.C.P. 1023.1(d). Such a sanction is subject to the conditions stated in Rules 1023.2 through 1023.4. Pa. R.C.P. 1023.1(d).

Plaintiff’s Motions for Sanctions have generally alleged that Defense Counsel should be sanctioned for certifying contradicting facts. In the Petition to Open/Strike Judgment, Attorney Carroll certified that Defendant is Rental Finance Corporation, an entity that is in the business of renting cars nationally, and is the entity that owned the Jeep involved in the accident that is the basis for Plaintiff’s claim. At oral argument on the Petition, Attorney Katz argued that the address where notice was sent was not Defendant’s place of business, while the Petition and Brief in Support stated that Defendant has a place of business at the Doremus Avenue address. About ten months after filing the Petition, in Defendant’s Response to Plaintiff’s Motion to Compel Deposition Testimony, Attorney Carroll certified that in fact Defendant was a nonentity without officers, employees, or designees it could produce for deposition, that it was “Dollar Rental Car” that owned the Jeep, and Dollar Rental Car was subject to Hertz’s Chapter 11 Bankruptcy stay. Plaintiff’s September 29, 2020 Motion sought sanctions based on the contradiction. The February 3, 2021 Motion seeks sanctions based on the November 2020 depositions of agents for Defendant that indicate that, apart from the place of business at 900 Doremus Avenue, none of the facts previously certified are true.

The depositions indicate that the owner of the Jeep was Rental Car Finance Corporation, which was converted to Rental Car Finance, LLC shortly before the accident with Lebanon Transit’s bus. Rental Car Finance, LLC is a wholly owned subsidiary of Hertz Corporation, but is not itself subject to the Chapter 11 bankruptcy stay. Hertz employees routinely handle the claims involving Rental Car Finance, LLC’s vehicles, and had notice of the action against the owner of the Jeep. Given that these facts were discoverable once Hertz’s in-house general counsel and claims adjustor were asked the right questions, an inquiry by Defense Counsel would have revealed that the factual allegations in both the Petition to Open/Strike Judgment and the Response to Plaintiff’s Motion to Compel Deposition Testimony did not have evidentiary support. However, as late as the hearing before this Court on October 13, 2020, counsel represented that the Defendant’s proper name is Rental Car Finance Corporation. Now, Defendant’s Response to the instant motion for sanctions corrects its name to Rental Car Finance, LLC, and argues that by filing a Motion to Amend Judgment Plaintiff admits that Rental Finance Corporation is a nonentity and that the judgment is a nullity.

As discussed in this Opinion’s section on Plaintiff’s Motion to Amend, Jose Ramirez’s deposition testimony indicates that Defense Counsel knew that Rental Finance Corporation was not the correct name of Defendant as early as October or November 2019, before filing the Petition to Open/Strike Judgment, and Defense Counsel apparently acted to prevent Mr. Ramirez appearing at the Hearing on March 23, 2021 to testify to the Court one way or  the other. The totality of the record before the Court indicates that Defense Counsel did violate Rule 1023.1(c)(1) and Rule 1023.1(c)(3) by presenting documents designed to cause unnecessary delay to Plaintiff’s collecting on the judgment and alleging facts that did not have evidentiary support. However, because the notice and opportunity to respond to the violations of Rule 1023.1(c) required by Rule 1023.1(d) is deficient, the Court is constrained to find that it may not impose sanctions on Defense Counsel for these violations.

Despite filing three Motions for Sanctions in this case, two of which included claims against Defense Counsel, Plaintiff did not articulate the legal grounds for sanctioning Defense Counsel until its April 13, 2021 Brief in Support of the February 3, 2021 Motion for Sanctions. The Explanatory Comment to Rule 1023.1 states that “[t]he motion for sanctions cannot be filed until at least 28 days after service of a written notice and demand, upon the party whose conduct is claimed to violate the rule, that the offending document or portion of the document be withdrawn or appropriately corrected.” Furthermore, “a party will not be subject to sanctions under Rule 1023.1 on the basis of another party’s motion unless, after having been served with the written notice and demand, it refuses to withdraw that allegation or contention or to acknowledge that it does not currently have evidence to support it.” Pa. R.C.P. 1023.1 cmt. (2003). The only notice on record sent by Plaintiff to Defendant is an email between counsel on January 29, 2021, indicating the intent to file the February 3, 2021 Motion for Sanctions the next week. (Plaintiff’s Motion for Sanctions, February 2, 2021, Exhibit E.)

Defense Counsel was not served a written notice and demand to correct the documents submitted to the Court without evidentiary support and for the purpose of causing unnecessary delay. Therefore Defense Counsel cannot be subject to sanctions for violating Pa. R.C.P. 1023.1(c).

1. Whether the Court May Sanction Defendant

An award of attorneys’ fees and costs incurred in bringing an action is within the discretion of the trial court. Regis Ins. Co. v. Wood, 852 A.2d 347, 349–50 (2004). Courts may award reasonable counsel fees to one party as a sanction for the other party’s “dilatory, obdurate, or vexatious conduct during the pendency of the matter.” 42 Pa. C.S. §2503(7); In re Barnes Found., 74 A.3d 129, 135 (2013); Kulp v. Hrivnak, 765 A.2d 796, 799 (2000). Any award of counsel fees under 42 Pa. C.S. §2503(7) must be supported by the trial court’s specific finding of dilatory, obdurate or vexatious conduct. Kulp, 765 A.2d at 799. “Conduct is ‘dilatory’ where the record demonstrates that counsel displayed a lack of diligence that delayed proceedings unnecessarily and caused additional legal work.” In re Est. of Burger, 852 A.2d 385, 391 (Pa. Super. 2004). The Superior Court has defined “obdurate” as “stubbornly persistent in wrongdoing.” Id. Vexatious conduct involves bringing suit or filings without legal or factual grounds, “for the sole purpose of causing annoyance.” See Oliver v. Irvello, 165 A.3d 981, 987 (2017).

42 Pa. C.S. §2503 entitles a party to reasonable counsel fees. Thus, when requesting an award of attorney’s fees a party must document the fees incurred and the services rendered. See Krebs v. Krebs, 975 A.2d 1178, 1182 fn. 3 (Pa. Super. 2009) (citing Litmans v. Litmans, 673 A.2d 382, 391 (Pa. Super. 1996); Anzalone v. Anzalone, 835 A.2d 773, 786 (Pa. Super. 2003)). Generally when awarding attorney’s fees, courts have held that reimbursement must be for time appropriately spent by counsel on the particular case. Danks v. Gov’t Emps. Ins. Co., 453 A.2d 655, 657 (1982). Additionally, a party that incurs attorney’s fees as the result of the other party’s dilatory, obdurate, or vexatious conduct is entitled to the full amount of reasonable attorney’s fees incurred because of that conduct. See Morgan v. Morgan, 193 A.3d 999, 1007–08 (Pa. Super. 2018) (holding trial court abused its discretion in failing to award 100% of reasonable attorneys’ fees incurred by appellant-wife from the inception of the case, when case was initiated by appellee-husband’s obdurate and dilatory conduct).

The factual record in this case reflects that Defendant, through its agents and counsel, sought to delay execution of the April 2019 default judgment against it by a series of wrongdoing. Specifically, Defendant refused to answer written discovery in aid of execution served in August 2019; in November 2019, filed under the incorrect name a Petition to Open/Strike Judgment that admitted it owned the car; apparently continued to refuse to answer written discovery even after ordered to serve responses by the Court in July 2020; in September 2020, put forward unsubstantiated claims of bankruptcy, claimed that “Dollar Rental Car” and not Defendant was the owner of the subject car, and claimed Defendant was a nonentity and therefore could not present anyone for deposition; refused to name and provide for deposition a designee until ordered to do so by the Court in October 2020, upon Plaintiff’s Motion to Compel Deposition Testimony; in March 2021 failed to present notified and required witnesses for a hearing before the Court; and now persists in claiming that the default judgment is null and void because it was wrongly named in the caption. This series of events is the definition of “stubbornly persistent in wrongdoing,” or obdurate conduct. Moreover, failure to answer written discovery timely and the extensive delay in presenting anyone for deposition constitutes dilatory conduct because these actions led to unnecessary delay in the execution of the judgment and caused additional legal work as Plaintiff sought to compel discovery in aid of execution through court order. While many of the claims Defendant has made were without factual grounds, it is not clear that their sole purpose was to cause annoyance, so Defendant’s conduct was not vexatious within the legal definition of the word. The Court need find conduct of only one of the three types to merit sanctions under 42 Pa. C.S. §2503(7). Given that the Court finds the conduct described above to be obdurate and dilatory, Plaintiff is entitled to reasonable counsel fees incurred as a result of that conduct.

Plaintiff’s February 3, 2021 Motion for Sanctions requests $20,000 in attorney’s fees as a result of Defendant’s dilatory, obdurate, and vexatious conduct. However, Plaintiff has not submitted documentation as to the fees incurred and services rendered as a result of that conduct. Without proof that $20,000 is a reasonable amount in attorney’s fees under these circumstances, the Court cannot enter an award of counsel fees in that amount. As a consequence, the Court will grant Plaintiff’s Motion for Sanctions of Defendant, and schedule a hearing on the sole issue of determining Plaintiff’s reasonable counsel fees resulting from the obdurate and dilatory conduct identified in the previous paragraph of this Opinion.

Conclusion

Plaintiff obtained judgment by default against Defendant in April 2019 and Defendant brought a Petition to Open/Strike Judgment in November 2019. The Court denied the Petition to Open in May 2020, and since then Defendant has attempted to avoid paying on the lawful judgment against it at every turn. The record reflects that Plaintiff initiated the action against the correct entity under the incorrect designation, and Defendant’s agents knew the action would have named the correct entity but for a mistake, therefore Plaintiff’s Motion to Amend Judgment will be granted. The record reflects that Defendant has engaged in a series of obdurate and dilatory conduct to avoid answering discovery that would enable Plaintiff to collect on the judgment, therefore the Court will grant Plaintiff’s Motion for Sanctions as to Defendant and award Plaintiff counsel fees as a sanction against Defendant. Finally, because Plaintiff did not serve Defense Counsel with proper notice and demand for correction under Pennsylvania Rule of Civil Procedure 1023.1, Plaintiff’s Motion for Sanctions as to Defense Counsel will be denied without prejudice.

 

 

 

[1] The Petition to Open/Strike Judgment filed by this Defendant also identified it as “Rental Finance Corporation.”

[2] The Court notes that in asserting these defenses Defendant admitted that it was the owner of the vehicle rented by Jose Otero-Perez.

[3] A fact that becomes relevant in the face of Counsel’s later arguments that Rental Finance Corporation is a nonentity that could not produce officers or employees for deposition and that the Jeep was actually owned by Dollar Rental Car, an entity owned by Hertz.

[4] Plaintiff’s position in the Motion for Sanctions against Counsel and at the hearing was that if Rental Finance Corporation truly is a nonentity, attorney-client privilege does not attach and Plaintiff is entitled to the file.

[5] The filings of both parties refer to this motion as the Second Motion for Sanctions, but it is the third entered on the docket.

[6] Indeed, judicial estoppel and the law of the case doctrine operate to prevent Defendant from denying the previous admission that it owned the Jeep after the Court found that it owned the Jeep in ruling on the Petition to Open/Strike Judgment. See, e.g. Bienert v. Bienert, 168 A.3d 248, 255 (Pa. Super. 2017) (“Once a matter has been decided by a trial judge the decision should remain undisturbed, unless the order is appealable and an appeal therefrom is successfully prosecuted. As a general proposition, [a court] should not revisit questions it has already decided.”).