DiLauro v. One Bala Avenue Associates

515 A.2d 939, 357 Pa. Super. 209, 1986 Pa. Super. LEXIS 12406
CourtSupreme Court of Pennsylvania
DecidedSeptember 29, 1986
Docket01705
StatusPublished
Cited by8 cases

This text of 515 A.2d 939 (DiLauro v. One Bala Avenue Associates) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DiLauro v. One Bala Avenue Associates, 515 A.2d 939, 357 Pa. Super. 209, 1986 Pa. Super. LEXIS 12406 (Pa. 1986).

Opinions

POPOVICH, Judge:

This is an appeal from an order of the trial court which denied the motion of appellants-defendants, One Bala Avenue Associates and Bala Realty Advisors, Inc., the owner and manager of a commercial building, respectively, to join an additional defendant, nunc pro tunc. We must reverse and remand for proceedings consistent with this opinion.

The record reveals the following set of facts which were summarized by the trial court:

On February 16, 1982, appellee-plaintiff, Dominick DiLauro, attempted to enter the premises of his employer, Technical Aid Corporation (T.A.C.), located at One Bala Avenue, Bala Cynwyd, Pennsylvania. Appellee lost his footing while descending the stairs leading to his employer’s offices, fell down the stairs and sustained “serious and totally disabling injuries.”

On January 17, 1984, appellee filed a complaint in trespass and assumpsit against appellants. Appellee alleged that his injuries were the “direct result of the negligence of the [appellants-djefendants in failing to design and maintain proper ingress and egress to the building and more specifically failing to provide properly placed handrails for use while descending the stairs.”

[211]*211Ten months later, appellants filed a motion to join the employer, Technical Aid Corporation, as an additional defendant pursuant to Pa.R.C.P. 2252. Technical Aid was the lessee of the premises and appellants asserted that the lease contract contained an indemnity clause which relieved them from all liability for “injury or damage to any person or property in or about the demised premises.”

Appellants claimed that the indemnity clause constituted a proper case for joinder. Appellee stated that he would not be prejudiced by the late joinder.

After oral argument was held, the trial court dismissed appellants’ joinder motion. This appeal followed.

Appellants argue that the trial court erred in denying their motion to join Technical Aid Corporation nunc pro tunc because there existed a valid indemnification agreement which predated the appellee’s accident.1

The following guidelines must be applied in determining the merits of appellants’ argument:

Pa.R.Civ.P. 2253 requires that leave of court be sought, upon cause shown, to secure joinder of an additional defendant after the expiration of the sixty-day period. See Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970). “Whether there is ‘cause shown’ for the allowance of an extension of time for the joinder of an additional defendant is a matter within the discretion of the lower court, and its decision will not be reversed absent an abuse of discretion.” Kovalesky v. Esther Williams Swimming Pools, 345 Pa.Super. 95, 104, 497 A.2d 661, 665 (1985). Accord Zakian v. Liljestrand, supra, 438 Pa. at 255, 264 A.2d at 641; Farmer v. General Refractories Co., 271 Pa.Super. 349, 351, 413 A.2d 701, 702 (1979); Welch Foods Inc. v. Bishopric Products Co., 254 Pa.Super. 256, 258, 385 A.2d 1007, 1008 (1978).

[212]*212DeAngelis v. Newman, 350 Pa.Super. 536, 538, 504 A.2d 1279, 1280 (1986).

We also recognize that:

The defendant’s petition seeking an extension of time to join an additional defendant must contain:
(1) some reasonable justification or excuse for the delay; (2) a statement of the facts alleged to render the proposed additional defendant alone liable, or liable with, or liable over to defendant, or liable to the defendant on a proper cross claim; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant. It should ask for leave to file both the praecipe and the complaint called for by Rule 2252(b).
Goodrich-Amram 2d § 2253:3.1 at 108 (1977) (footnotes omitted) (emphasis added); see also Farmer v. General Refractories Co., 271 Pa.Superior Ct. 349, 352, 413 A.2d 701, 702 (1979).
* * * * * *
Additionally, “the burden of demonstrating sufficient cause to allow the unseasonable joinder rest[s] with defendant.” Welch Foods, Inc. v. Bishopric Products Co., supra 254 Pa.Super. at 258-59, 385 A.2d at 1008; accord Coopers & Lybrand v. Penn State Mutual Insurance Co., 32 Pa.Commonwealth Ct. 435, 438, 379 A.2d 901, 903 (1977). In determining what is sufficient cause for an extension of time for joinder of an additional defendant, courts
should be guided by the objectives sought to be achieved by use of the additional defendant procedure in conjunction with the purpose for which a 60-day limitation was placed on its unrestricted use. In a capsule, these rules were an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties ... without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation. [213]*213Zakian v. Liljestrand, supra 438 Pa. at 256, 264 A.2d at 641 (citation omitted). See also Coppage v. Smith, supra 381 Pa. at 405, 113 A.2d at 250 (procedural rules should “be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable”); Ianni v. Pantalone, 238 Pa.Superior Ct. 548, 553, 361 A.2d 772, 774 (1976) (procedural rules governing third party procedure should “be construed to accomplish the purpose of ‘[avoiding] multiplicity of suits by adjudicating in one suit the rights and liabilities of all of the parties to a single transaction which constitutes the cause of action’ ... ”); Martinelli v. Mulloy, 223 Pa.Superior Ct. 130, 135, 299 A.2d 19, 21 (1972) (Rule 2252(a) should be broadly interpreted “not only to compel every interested person to defend the action by the plaintiff, but also to save the original defendant from possible harm resulting from loss of evidence as might result if compelled to await the end of the suit before proceeding against those from whom he seeks contribution”).

Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 103-05, 497 A.2d 661, 665-666 (1985).

According to appellants, their petition was not filed earlier because “[t]he delay in filing the instant petition has resulted from a misunderstanding concerning the transfer of this matter from Philadelphia to Montgomery County.” Motion at Allegation # 13. Appellee admitted this allegation in its answer; however, appellee denied that joinder was necessary.

The trial court held that the appellants’ petition to join should not be granted citing our Supreme Court’s decision in Stokes v.

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DiLauro v. One Bala Avenue Associates
515 A.2d 939 (Supreme Court of Pennsylvania, 1986)

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Bluebook (online)
515 A.2d 939, 357 Pa. Super. 209, 1986 Pa. Super. LEXIS 12406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dilauro-v-one-bala-avenue-associates-pa-1986.