Azcon Corp. v. Dual State Builders, Inc.

8 Pa. D. & C.3d 499, 1978 Pa. Dist. & Cnty. Dec. LEXIS 168
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedSeptember 12, 1978
Docketno. 2215
StatusPublished

This text of 8 Pa. D. & C.3d 499 (Azcon Corp. v. Dual State Builders, Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Azcon Corp. v. Dual State Builders, Inc., 8 Pa. D. & C.3d 499, 1978 Pa. Dist. & Cnty. Dec. LEXIS 168 (Pa. Super. Ct. 1978).

Opinion

GUARINO, J.,

— This matter is for determination on additional defendant’s multifaceted prehminary objections: (1) in the nature of a motion to strike for lack of conformity to law or [500]*500rule of court, (2) in the nature of a demurrer for failure to allege a cause of action, and (3) motion for more specific pleading.

MOTION TO STRIKE

Failure of a pleading to conform to law or rule of court may be raised by preliminary objections: Pa.R.C.P. 1017(b)(2). The relevant determinants on this issue in the case at bar are as follows:

The action was commenced by complaint on November 18, 1975, by plaintiff-owner to recover damages for a faulty roof against defendant-builder, Dual State Builders (hereinafter original defendant). During the course of discovery, original defendant discovered that additional defendant, Celotex, had supplied the roofing material that he used in constructing plaintiffs roof. Accordingly, on August 16, 1976, eight months after the complaint had been filed and six months after it was served upon him, he filed a petition for extension of time to join additional defendant. The petition was heard ex parte on September 22, 1976, and by order of the same date, Judge Gelfand extended the time, allowing defendant 20 days within which to file joinder. This of course was without prejudice to additional defendant’s right to file a timely objection to the joinder. See McDevitt v. Rent-a-Car Systems, Inc., 443 Pa. 49, 277 A. 2d 815 (1971); Myers v. Stewart, 1 PICO 286, fh. 1.

On October 7, 1976, defendant filed a praecipe to join additional defendant. Service was obtained on additional defendant on October 18, 1976. Neither party acted on the joinder until March 10, 1978, when defendant filed a complaint against additional defendant, and, not until May 16, 1978, did [501]*501additional defendant file this petition objecting to the joinder.

It is contended by additional defendants that the pleading joining them should be striken because it is filed in violation of the Rules of Civil Procedure, namely Pa.R.C.P. 2253 and 2252.

In its pertinent part, Pa.R.C.P. 2253 provides that no writ or complaint for joinder “shall be filed by the original defendant . . . later than sixty (60) days after the service upon the original defendant . . . unless such filing is allowed by the court upon cause shown.” (Emphasis supplied.) Sixty days having lapsed from the date when original defendants were served, a joinder was impermissible except by allowance of the court on cause shown. Our inquiry on the motion is to determine whether Judge Gelfand’s order extending the time was based upon good cause.

It is original defendant’s contention that he became aware of additional defendant’s liability during discovery, that he could not have joined defendant within the 60 day limitation and that his petition for extension could not have been filed sooner. While the record shows that there was an eight month lapse since service of the original complaint on original defendants, there was no lack of diligence on their part in pursuing their rights. Despite the entry of default judgment against one of the original defendants, which was not vacated until August 28, 1977, discovery proceeded at a reasonably expeditious pace, and the petition for extension was filed August 16, 1976, soon after discovery of the facts of additional defendant’s liability. Under these circumstances, there is good cause shown for Judge Gelfand’s order allowing the extension.

[502]*502Whether an extension of time will be granted is largely a matter of judicial discretion: Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A. 2d 638, 641 (1970); Marnell v. Cross, 372 Pa. 82, 92 A. 2d 688 (1952); Coppage v. Smith, 381 Pa. 400, 113 A. 2d 247 (1955); Myers v. Stewart, 1 PICO 286, 287. The application for an extension may be made either before or after the expiration of the original time period. See 8 Goodrich-Amram 2d §2253:4. It is the declared intendment of the Rules of Civil Procedure “to secure the just, speedy and inexpensive determination of every action ...” and that the “court . . . may disregard any error... of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. 126. The procedural rules are to be liberally and broadly interpreted, and procedural defects are to be disregarded when the substantive rights of the parties are not affected. See Demharter v. First Federal Savings & Loan Association of Pittsburgh, 412 Pa. 142, 194 A. 2d 214 (1963); Beaver v. Penntech Paper Co., 452 Pa. 542, 307 A. 2d 281 (1973). “The time prescribed by any rule . . . for doing of any act may be extended ... by order of court.”1 Pa.R.C.P. 248.

The substantive rights of defendant will not be affected by allowance of the late joinder. Tobe sure, additional defendant will be prejudiced by the joinder. Being joined as parties will ipso facto expose them to a liability and to this extent it may be said that their position is worsened. But, if this were to be the criteria for allowing extension for joinder of a party on cause shown, then there could never be a [503]*503late joinder, and the rule authorizing the joinder after 60 days is a nullity. This self-evident absurdity was not meant to be. The prejudice that will impel the court to disallow an amendment or extension must be other than that which naturally flows from the mere allowance of the relief sought. The detriment must be independent of the allowance of the late joinder.2 There is nothing on the record before me that suggests what if any prejudice additional defendant would suffer or what substantive rights they have lost as a result of the delay.3

It is also contended that original defendant, after filing the writ to join, failed to follow it up with a complaint in a timely fashion, as required by the rules. Pa.R.C.P. 2252(b) provides that where the “joinder is by writ the joining party shall file his complaint within 20 days from the filing of the praecipe for the writ.”

In the instant case, the complaint joining additional defendant was not filed within 20 days after [504]*504the writ was issued. As stated, the writ issued on October 18, 1976. The complaint to join was not filed until March 10, 1978.

We are not persuaded that this omission is of such significant consequence under these prevailing circumstances that it overbears the equitable criteria for granting late joinders. The defect is procedural and not of substance, and the parties were equally remiss: original defendant failed to file his complaint to join within 20 days of filing of the praecipe and additional defendant did not object to the joinder when made,4 nor did he rule defendant to comply with the formal requirement or suffer non pros.5 In arriving at our determination we are reminded that during the 18-month delay in service of the writ joining additional defendant, the four year Statute of Limitations for breach of warranty under the U.C.C.: Act of April 6, 1953, P.L. 3, as amended, 12A P.S. §2-725, has expired, and that in this regard the substantive rights of original defendants and plaintiff will be affected by the denial of the joinder at this late date.

THE DEMURRER

A demurrer will not be granted and a cause of action dismissed where the complaint states a [505]

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Bluebook (online)
8 Pa. D. & C.3d 499, 1978 Pa. Dist. & Cnty. Dec. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/azcon-corp-v-dual-state-builders-inc-pactcomplphilad-1978.