Cozzi v. Johns-Manville Corp.

41 Pa. D. & C.3d 652, 1983 Pa. Dist. & Cnty. Dec. LEXIS 16
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedApril 29, 1983
Docketno. 1703
StatusPublished

This text of 41 Pa. D. & C.3d 652 (Cozzi v. Johns-Manville Corp.) 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
Cozzi v. Johns-Manville Corp., 41 Pa. D. & C.3d 652, 1983 Pa. Dist. & Cnty. Dec. LEXIS 16 (Pa. Super. Ct. 1983).

Opinion

TAKIFF, J.,

Presently before the court is defendant Pacor, Inc.’s petition to join additional defendants nunc pro tunc. The motion is unopposed. For the reasons explicated below, we grant the instant motion.

On February 13, 1980, plaintiffs filed a complaint against movants Celotex Corporation and Carey Canadian Mines Ltd., alleging injuries to husband-plaintiff as a result of his exposure to asbestos products supplied by them. On January 21, 1982, plaintiffs served their first amended complaint joining as added original defendants Flintkote Company, Pittsburgh Corning Corporation and Raymark In[653]*653dustries, Inc. Thereafter, added defendants Flintkote Company, Pittsburgh Corning Corporation and Raymark Industries, Inc., filed motions for summary judgment, asserting that plaintiffs’ direct action as to them was barred by the statute of limitations; said motions were granted by this court on November 22, 1982. Movant now seeks to join the aforementioned as additional defendants on the ground that their products were among those to which husband-plaintiff was allegedly exposed and, hence, they may be liable by way of contribution or indemnity to movant.

Movant asserts that its delay in joining proposed additional defendants is due to the fact that counsel for movant first received notice of the granting of the motions for summary judgment filed by the proposed added defendants in January 1983. Movant further asserts' that no prejudice will result to any proposed additional defendant, since no discovery has taken place during the time which has elapsed .since their dismissal from the case. In addition, movant contends that where the benchmark event is a dismissal from the case, the 60-day period within which a proposed additional defendant may be joined under PaR.C.P. 2253 should date from the time of the dismissal. We agree with this contention in substance and allow the joinder, here sought.

Granting or denying a petition to extend the time within which additional defendants may be joined is within the sound discretion of the court. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970). In determining whether the court should allow joinder of additional defendants after the 60-day period provided by Pa.R.C.P. 2253 has lapsed, the Zakian court admonished that a court should:

“[b]e guided by the objectives sought 'to be achieved by the use of the additional defendant pro[654]*654cedure in conjunction with the purpose for which a »60-day limitation was placed on its unrestricted use.” Id. at 256. The court explicated that the joinder rule was designed to dispose of matters involving numerous parties in a simple and expeditious manner, without subjecting the original plaintiff to unreasonable delay. Id.

Standards for what constitutes the requisite cause for an extension of time within which to join additional defendants have been judicially developed:'

“As a general proposition, the time period for the joinder of an additional defendant should be extended if there is alleged: (1) some reasonable justification or excuse for the delay; (2) facts showing the liability of the proposed additional defendants; (3) that the extension will not cause any undue hardship on the additional defendant. Scureman v. Perkiomen Realty Co., 47 D.&C. 361 (1943); Lambert v. Webb Mfg. Co., 77 D.&C. 363 (1951), quoting Goodrich-Amram. Rizzo v. City of Philadelphia, 67 D.&C.2d 665, 668 (1974) (unexplained delay and prejudice to proposed additional defendant compels dismissal of writ of joinder and joinder complaint).

Applying these factors to the matter sub judice, and bearing in mind the objectives delineated above, we find that movant has met its burden of demonstrating sufficient cause for its delay in seeking joinder. Movant’s justification for its delay is reasonable; the liability of proposed additional defendants has been appropriately alleged in movant’s joinder complaint, based upon movant’s information and belief that the asbestos products alleged by plaintiff to have caused his injuries were supplied by proposed additional defendants; and no hardship [655]*655or prejudice will result to any party as a result of joinder.

Accordingly, we enter the following

ORDER

And now, this April 29, 1983, upon consideration of defendant Pacor, Inc.’s petition for joinder of additional defendants nunc pro tunc, no response thereto having been filed, it is hereby ordered and decreed that leave is. gran ted to movant to join proposed additional defendants Flintkote Company, Pittsbugh Corning Corporation and Raymark Industries, Inc., without prejudice to the rights of said additional defendants to timely object.

TARIFF, J.,

April 29, 1983 — Presently before the court are additional defendant Owens-Corning Fiberglas Corporation’s preliminary objections to the third-party complaint of Pacor, Inc. For the reasons explicated below, we overrule the instant preliminary objections.

On February 13, 1980, plaintiffs served their original complaint in trespass and assumpit on Pacor, Inc. (Pacor), Celotex Corporation and Carey Canadian Mines, Ltd. Movant was neither named in nor served with that pleading. On January 21, 1982, plaintiffs served their first amended complaint, in which movant was named and served as a party defendant. On December 15, 1982, movant filed a motion for summary judgment, asserting the bar of the statute of limitations. On January 24, 1983, we granted that motion as to plaintiffs’ direct claims and any implied cross-claims arising out of operation of our fifth pretrial order issued August 1, 1979. [656]*656Less than 60 days later, on March 14, 1983, Pacor filed a third-party complaint against movant, to which movant now preliminarily objects.

Movant asserts that the third-party complaint of Pacor violates our order of January 24, 1983, granting summary judgment to movant on plaintiffs direct claims and any implied cross-claims and, therefore, should be stricken for lack of conformity to rule of court.

In its response to the preliminary objections, Pacor asserts that the order entered by this court on January 24, 1983, expressly recognized the right of any defendant to rejoin movant by virtue of the following language:

“This order is without prejudice to the right of any defendant to initiate appropriate actions seeking contribution or indemnification against Owens-Coming Fiberglas Corporation as may be warranted under the circumstances.” Cozzi v. Johns-Manville Corp., 8002-1703(-) (Phila. C.C.P. January 24, 1983) at 4.

We agree with Pacor that our order of January 24, 1983, clearly provided for the institution of appropriate actions for contribution or indemnity.' Movant’s preliminary objection in the nature of a motion to strike for lack of conformity to rule of court is overruled.

Movant further contends that Pacor’s complaint should be stricken for lack of conformity to law, because it was filed beyond the 60-day period provided by Pa.R.C.P. 2253. In support of this contention, movant avers that Pacor filed its third-party complaint against it on March 15, 1983, more than three years after plaintiffs served their original complaint upon Pacor and more than 13 months after plaintiffs served their first amended complaint upon Pacor. Since Rule 2253 provides that a complaint [657]

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Related

Zakian v. LILJESTRAND
264 A.2d 638 (Supreme Court of Pennsylvania, 1970)

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Bluebook (online)
41 Pa. D. & C.3d 652, 1983 Pa. Dist. & Cnty. Dec. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cozzi-v-johns-manville-corp-pactcomplphilad-1983.