Reese v. Lauffenberger

Warren County Court of Common Pleas

Reese v. Lauffenberger

67 Pa. D. & C.2d 209, 1974 Pa. Dist. & Cnty. Dec. LEXIS 400

CourtPennsylvania Court of Common Pleas, Warren County

DecidedSeptember 9, 1974

Docketno. 100

StatusPublished

This text of 67 Pa. D. & C.2d 209 (Reese v. Lauffenberger) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Warren County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Reese v. Lauffenberger, 67 Pa. D. & C.2d 209, 1974 Pa. Dist. & Cnty. Dec. LEXIS 400 (Pa. Super. Ct. 1974).

Pincite

Opinion

WOLFE, P. J.

Before us is motion of the additional defendant for judgment of non pros for failure of defendant to file a complaint [210]*210against additional defendant within 20 days as provided by Rule of Civil Procedure 2252(b), which provides:

“If the joinder is by writ the joining party shall file his complaint within twenty (20) days from the filing of the praecipe for the writ”.

In the instant case, additional defendant was joined by writ, and it is admitted the defendant’s complaint was not filed until more than 11 months after the joinder. It is also acknowledged by additional defendant that no rule was taken against defendant to file complaint.

It is additional defendant’s position that Pa. R. C. P. 2252 (b) is mandatory and relies upon the recent case of Alexander v. Mastercraft Construction Co., Inc., 455 Pa. 579 (1974). A fair reading of this case does not support this position. Rule 1037(a) provides a remedy for defendant to compel plaintiff to file a complaint by a praecipe for a rule upon plaintiff and if the complaint is not filed within 20 days, the prothonotary, upon praecipe of defendant, shall enter a judgment of non pros. Although in Alexander v. Mastercraft Construction Co., Inc., supra, held an additional defendant joined by writ only may not challenge the failure to file a complaint within 20 days by preliminary objections, we think a fair interpretation of the holding in that case also is to the effect before a judgment of non pros can be entered, defendant or additional defendant must first rule for complaint as provided by Rule 1037(a). Indeed, Rule 2252(b) is not self-executing and is not mandatory as the additional defendant in this case contends.

For these reasons, we enter the following order:

ORDER

And now, September 9, 1974, additional defendant’s motion for judgment of non pros is denied.

Free access — add to your briefcase to read the full text and ask questions with AI

WOLFE, P. J.

Before us is motion of the additional defendant for judgment of non pros for failure of defendant to file a complaint [210]*210against additional defendant within 20 days as provided by Rule of Civil Procedure 2252(b), which provides:

“If the joinder is by writ the joining party shall file his complaint within twenty (20) days from the filing of the praecipe for the writ”.

In the instant case, additional defendant was joined by writ, and it is admitted the defendant’s complaint was not filed until more than 11 months after the joinder. It is also acknowledged by additional defendant that no rule was taken against defendant to file complaint.

It is additional defendant’s position that Pa. R. C. P. 2252 (b) is mandatory and relies upon the recent case of Alexander v. Mastercraft Construction Co., Inc., 455 Pa. 579 (1974). A fair reading of this case does not support this position. Rule 1037(a) provides a remedy for defendant to compel plaintiff to file a complaint by a praecipe for a rule upon plaintiff and if the complaint is not filed within 20 days, the prothonotary, upon praecipe of defendant, shall enter a judgment of non pros. Although in Alexander v. Mastercraft Construction Co., Inc., supra, held an additional defendant joined by writ only may not challenge the failure to file a complaint within 20 days by preliminary objections, we think a fair interpretation of the holding in that case also is to the effect before a judgment of non pros can be entered, defendant or additional defendant must first rule for complaint as provided by Rule 1037(a). Indeed, Rule 2252(b) is not self-executing and is not mandatory as the additional defendant in this case contends.

For these reasons, we enter the following order:

ORDER

And now, September 9, 1974, additional defendant’s motion for judgment of non pros is denied.

Cite This Page — Counsel Stack

Bluebook (online)

67 Pa. D. & C.2d 209, 1974 Pa. Dist. & Cnty. Dec. LEXIS 400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-lauffenberger-pactcomplwarren-1974.

Opinion

Related

Cite This Page — Counsel Stack