The sole question presented by this appeal is whether the Superior Court properly denied plaintiff leave to amend his complaint.
The cause of action arose on May 19, 1970 when plaintiff allegedly sustained personal injuries in a fall from a malfunctioning motorcycle which had been manufactured by defendant Kawasaki Motor Corporation (Kawasaki), a California corporation, and purchased by plaintiff from Delaware Cycle Center.
Approximately six weeks before the end of the limitations period (see 10 Del.C. § 8118), plaintiff filed the complaint against Kawasaki and "David P. Trainer t/a Delaware Cycle Center". Trainer filed an answer saying that he did not trade as Delaware Cycle Center and did not sell a motorcycle to plaintiff; he then filed a motion for summary judgment with his affidavit which states in part:
Delaware Cycle Center, Inc., was organized on June 6, 1968.
Seeking to substitute "Delaware Cycle Center, Inc., a Delaware Corporation" for "David P. Trainer t/a Delaware Cycle Center", plaintiff moved under Superior Court rule 15, Del.C.Ann. to amend the complaint and filed a supporting affidavit by his counsel stating that "prior to the filing of this action" he had contacted the office of the Secretary of State, Corporations Division and was "erroneously informed" that a corporation known as "Delaware Cycle Center, Inc." did not exist at that time.
Relying on our opinion in Food Fair Stores Corporation v. Vari, Del.Supr., 191 A.2d 257 (1963), the Superior Court denied the motion and granted Trainer's motion for summary judgment.
The central problem revolves around the fact that plaintiff's motion to amend was filed after the limitation period had ended.
In Vari, this Court relied upon Hackett v. Bethlehem Steel Co., Del.Super., 5 W. W. Harr. 317, 165 A. 332 (1933), and held that, absent circumstance which would excuse a plaintiff's failure to bring his action against the proper party within the statutory period, Hackett and other early Delaware cases should not be disregarded. Those cases were, of course, decided before the modern Superior Court Rules were adopted in 1948. Vari was decided after that date and, of present significance, changes were made in Rule 15 after it was decided.
When Vari was decided Rule 15(c) consisted only of what is now the first sentence of that Rule. Thus:
Effective January 1, 1967 a second sentence was added:
Together, these two sentences comprise the current version of Rule 15(c).
Any motion to amend a pleading must initially be made under Rule 15(a); and it mandates that "leave [to amend]
Turning to the facts, in our view they fall squarely within 15(c). It is apparent that the claim asserted in the amended pleading arose out of the "conduct, transaction, or occurrence" alleged in the original pleading. And beyond doubt Delaware Cycle Center, Inc., received such notice of commencement of the action that it will not be prejudiced in defending on the merits, for if the suit had been brought against the corporation, service on Trainer, its president, would have been valid. See 8 Del.C. § 321. Further, since Trainer actually received notice of commencement of the action, Delaware Cycle Center, Inc., "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against" it. In short, the requirements of 15(c) have been met.
The judgment of the Superior Court is reversed under a mandate to proceed in conformity herewith and, in so doing, we abandon any expressions in Vari which are inconsistent with this opinion.