Prah v. Cincinnati Milacron Inc.

30 Pa. D. & C.4th 385, 1996 Pa. Dist. & Cnty. Dec. LEXIS 307
CourtPennsylvania Court of Common Pleas, Westmoreland County
DecidedJune 6, 1996
DocketNo. 1; no. 7726 of 1994
StatusPublished

This text of 30 Pa. D. & C.4th 385 (Prah v. Cincinnati Milacron Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Westmoreland County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prah v. Cincinnati Milacron Inc., 30 Pa. D. & C.4th 385, 1996 Pa. Dist. & Cnty. Dec. LEXIS 307 (Pa. Super. Ct. 1996).

Opinion

LOUGHRAN, J.,

HISTORY

The plaintiffs filed their complaint at the above number and term on September 9, 1994, and served the original defendant, Cincinnati Milacron Inc. on September 19, 1994, and served the defendant, Cincinnati Milacron Marketing Company, on September 19,1994.

The original defendants thereafter, on October 26, 1995, obtained an order of court for leave to join as additional defendant, MGR Mold Inc. The original defendants’ complaint against additional defendants was filed on November 19, 1995, and was served on November 30,1995. The additional defendant, MGR Mold Inc., filed its preliminary objections on December 14, 1995, asserting, inter alia, that Pennsylvania Rule of Civil Procedure 2253 was violated in that the original defendants’ complaint against the additional defendant was filed more than 60 days after service upon the original defendant of the initial pleading of the plaintiff without cause shown, (emphasis added)

At the designated time for oral argument scheduled by the court administrator upon the preliminary objections filed, the court entered an order scheduling an evidentiary hearing on the matter for May 28, 1996, at 9 a.m. At that time, date and place, the court took testimony from Joseph J. Bosick and Kenneth T. Newman, attorneys for the defendants, Cincinnati Milacron Inc. and Cincinnati Milacron Marketing Company, and admitted into evidence their affidavits.

[387]*387OPINION

Pennsylvania Rule of Civil Procedure 2253 captioned “Time for Filing Praecipe or Complaint, ” states in its entirety:

“Except as provided by Rule 1041.1(e), neither praecipe for a writ to join an additional defendant nor a complaint if the joinder is commenced by a complaint, shall be filed by the original defendant or an additional defendant later than 60 days after the service upon the original defendant of the initial pleading of the plaintiff or any amendment thereof unless such filing is allowed by the court upon cause shown.”

The period for joining an additional defendant may only be extended by the court upon cause shown. As stated in Goodrich-Amram 2d, §2253.5 under the commentary:

“The enforcement of the 60-day limitation will not ordinarily work any hardship on the moving party who is barred from joining an additional defendant. If the moving party has a claim against the proposed additional defendant, he may bring a subsequent separate action against him, and thus, while subjected to delay, his substantive rights are not impaired. If the contention of the moving party is that the proposed additional defendant is solely liable to the plaintiff, the defendant may assert that defense in the plaintiff’s action even though the proposed additional defendant is not joined as a party to the action.” Pa.RC.P. 2252(a):2.

In this particular case, the attempted joinder is after the statute of limitation on the underlying cause of action of the plaintiff, and therefore the original defendants’ complaint against additional defendant, MGR Mold Inc., can be for contribution and/or indemnity only.

[388]*388The rule does not give any indication of what is sufficient cause. Ordinarily, the bar of the passage of the 60-day period will not be waived by the court. Patrick v. South Pittsburgh Water Company, 80 D.&C. 253 (1952). In exercising its discretion, it is suggested that the court must consider the length of the delay in seeking joinder in the entire context of the case. In refusing joinder 15 months late, the court noted that because the claim was only for indemnity (as in this case), the defendant would suffer no prejudice in being required to bring a second action. Regan v. Rajan & Temple University Hospital, 32 D.&C.3d 515 (1984).

The Pennsylvania cases have consistently held that late joinder has been properly refused when the record is clear that the moving party seeking an extension of time bears the burden of pleading and demonstrating sufficient cause to justify the delay, when the original defendants neither pled nor even attempted to argue any justification whatsoever for their failure to comply with Pa.R.C.P. 2253. Coopers & Lybrand v. Penn State Mutual Insurance Company et al., 32 Pa. Commw. 435, 379 A.2d 901 (1977). The court, speaking through President Judge Bowman, in Coopers & Lybrand, supra, wrote:

“Whether or not to grant appellant’s petition was a matter of discretion for the court below, (citations omitted) and such a discretionary determination will not be reversed unless an abusive discretion is shown. . . .
“We do not believe, however, that in these proceedings a balance is appropriate. Appellants bore a burden of pleading and demonstrating sufficient cause to justify their delay, (citations omitted) Having neither pleaded nor even attempted to argue any justification whatsoever for their failure to comply with Pa.R.C.P. 2253, we [389]*389cannot, within the permissible scope of review, hold that the court below abused its discretion, (citations omitted)
“What the Supreme Court said in Zakian, supra, is apropos: Before the defendant can ask the court to help him secure a just, speedy and inexpensive determination of the suit by permitting late joinder, he must have acted expeditiously himself . . . .” Id. at 438-39, 379 A.2d at 903. (emphasis in original)

In the instant case, Mr. Bosick, attorney for the original defendant, testified that it was known by his office on December 7,1994, some four months after the original complaint was filed and served, and after numerous telephone conversations with attorneys for Classic Industries, that Gellman Science was the entity that owned the mold which is allegedly involved in this incident. Counsel for the original defendant seeking the extension of time testified at the evidentiary hearing of May 28, 1996, that from December 7, 1994 until September 21,1995, no investigation, no phone calls, and no letters were made or sent to Gellman Science to determine whether they, or any other third party was the original manufacturer of the mold! In addition, no explanation was given why no such effort was made. In the affidavit submitted to the court of Joseph J. Bosick, Esquire, paragraph 10 indicated that an attempt was made to join Gellman Science as an additional defendant, but was then advised that the mold was probably not designed or manufactured by Gellman Science. Notwithstanding that information, no effort of investigation, no letters, no phone calls were ever made, sent or activated until September 21, 1995, when an associate in the office began calling Gellman Science and finally discovered on October 26, 1995, the identity of the manufacturer of the mold!

[390]*390In the recent case of Mutual Industries Inc. v. Weinberg, 423 Pa. Super. 328, 621 A.2d 140 (1993), an extension of time to join additional defendant pursuant to Pa.R.C.P. 2253 was denied. In that case, it appeared that in April of 1991 the plaintiff filed its original complaint and had it served. The (appellant) original defendant attempted to join an additional defendant on December 16,1991, some six months later.

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Related

Mutual Industries, Inc. v. Weinberg
621 A.2d 140 (Superior Court of Pennsylvania, 1993)
Zakian v. LILJESTRAND
264 A.2d 638 (Supreme Court of Pennsylvania, 1970)
Riccobono v. Keystone Helicopter Corp.
507 A.2d 834 (Supreme Court of Pennsylvania, 1986)
Coopers & Lybrand v. Penn State Mutual Insurance
379 A.2d 901 (Commonwealth Court of Pennsylvania, 1977)

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Bluebook (online)
30 Pa. D. & C.4th 385, 1996 Pa. Dist. & Cnty. Dec. LEXIS 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prah-v-cincinnati-milacron-inc-pactcomplwestmo-1996.