Shelly Foundations Inc. v. Able-Hess Associates Inc.

53 Pa. D. & C.4th 438, 2001 Pa. Dist. & Cnty. Dec. LEXIS 261
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedFebruary 8, 2001
Docketno. GD00-10445
StatusPublished

This text of 53 Pa. D. & C.4th 438 (Shelly Foundations Inc. v. Able-Hess Associates Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelly Foundations Inc. v. Able-Hess Associates Inc., 53 Pa. D. & C.4th 438, 2001 Pa. Dist. & Cnty. Dec. LEXIS 261 (Pa. Super. Ct. 2001).

Opinion

WETTICK, J.,

The motion of Able-Hess Associates Inc. for leave of court to file a complaint to join additional defendants is the subject of this opinion and order of court. The motion is opposed by plaintiff and one of the proposed additional defendants.

Able-Hess served as the general trades contractor on a construction project pursuant to a contract with the Board of Public Education of the School District of Pittsburgh. Shelly Foundations Inc. was a subcontractor to Able-Hess.

Shelly has sued Able-Hess for money allegedly due under the subcontract. In its complaint, Shelly alleges that while it was drilling in the precise location identified in the drawings provided by Able-Hess, it unexpectedly tapped into a sewer line. Most of Shelly’s claims involve extra work and wait/delay costs resulting from the misidentification of the location of the sewer line, including expenses incurred in repairing the sewer line.

The original complaint was served on June 16, 2000. On September 11, 2000, Able-Hess filed its complaint to join as additional defendants the Board of Public Education of the School District of Pittsburgh and the Pittsburgh Water & Sewer Authority. In its proposed complaint to join additional defendants, Able-Hess alleges that these additional defendants had incorrectly identified the location of the sewer line. Consequently, if it is determined that Able-Hess is liable to Shelly with respect to claims relating to misidentification of the location of the sewer line, additional defendants are liable over. In addition, Able-Hess seeks damages from proposed additional defendants, unrelated to plaintiff’s [441]*441claim, for its direct costs related to sewer remediation and foundation design work and for delays it experienced.

Under Pa.R.C.P. no. 2253, an original defendant may not join an additional defendant which is not already a party more than 60 days after the service upon the original defendant of the initial pleading of the plaintiff unless such filing is allowed by the court “upon cause shown.”

In this case, defendant missed the 60-day period by less than 30 days. The pleadings are not yet closed. There has been no discovery. The case has not been placed at issue. Consequently, the late joinder will not cause any prejudice to proposed additional defendants or to plaintiff.

However, Pennsylvania case law holds that the absence of prejudice does not establish good cause. NPW Medical Center of N.E. Penna. Inc. v. LS Design Group P.C., 353 Pa. Super. 341, 509 A.2d 1306 (1986). Furthermore, Able-Hess cannot establish any cause for the late joinder because it was aware of the claims which it is raising against the proposed additional defendants prior to the date upon which it was served with plaintiff’s complaint.1 Consequently, I cannot grant the motion for late joinder under the cause shown standard of Rule 2253.

I now address the question of whether the 60-day time period set forth in Rule 2253 is mandatory or whether [442]*442Rule 2253 may be read in conjunction with Pa.R.C.P. no. 126 which reads as follows:

“The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defective procedure which does not affect the substantial rights of the parties.”

In Carlos R. Leffler Inc. v. Hutter, 696 A.2d 157, 166 (Pa. Super. 1997), the Pennsylvania Superior Court, citing Rule 126, ruled that the trial court erred in refusing to consider the merits of a post-trial motion filed one day late:

“This is in keeping with our long-standing policy that the rules should be construed liberally in order to effectuate their intent; which, as always, is the timely and fair adjudication of disputes. See Pa.R.C.P. 126. While both the parties and the court should strive for steadfast compliance with the rules, dictatorial adherence to the letter of the rules may oftentimes have the effect of undermining and frustrating their intent.” Also, see Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989).

The Pennsylvania Supreme Court has ruled that a trial court, in the exercise of its discretion, may overlook errors of procedure where no party is prejudiced. In Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), a defendant first filed a pleading to raise the defense of the statute of limitations more than one year after service of the complaint and after the jury had been picked. The Pennsylvania Supreme Court held that the ruling of the [443]*443trial court permitting the late filing was not an abuse of discretion:

“We have considered this question previously and our position is clear: ‘... a lower court will not be reversed either for waiving or refusing to waive non-compliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party.’ This practice comports with Pa.R.C.P. 126 which mandates a liberal construction of the rules in general and the disregarding of any ‘error or defect of procedure which does not affect the substantial rights of the parties.’ ” Id. at 151, 285 A.2d at 112. (citations omitted)

In Paden v. Baker Concrete Construction Inc., 540 Pa. 409, 658 A.2d 341 (1995), the plaintiff filed an amended complaint naming a new defendant on the day before the statute of limitations expired. The amended complaint was filed without leave of court or the consent of the other party in violation of Pa.R.C.P. 1033. The trial court struck the complaint. The Superior Court reversed; it ruled that there was no prejudice, so the trial court was required to apply Rule 126. The Pennsylvania Supreme Court reinstated the ruling of the trial court, because a trial court is never required to apply Rule 126. The Pennsylvania Supreme Court ruled that in the situation where the improper filing works no prejudice against the improperly joined defendant or the other parties to the action, it is entirely up to the trial court to decide whether to enforce or overlook the procedural error:

“There is little doubt that this is a situation in which Rule 126 might appropriately have been applied, had the [444]*444trial court deemed it to be required in the interest of justice. Nevertheless, the trial court having rejected the reprieve allowed by Rule 126, we do not deem the striking of the improper joinder to show manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous. Thus, even if we might have reached a different conclusion had the decision been ours in the first instance, it was not an abuse of discretion for the trial court to rule as it did.

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Related

NPW Medical Center of N.E. Penna., Inc. v. LS Design Group, P.C.
509 A.2d 1306 (Supreme Court of Pennsylvania, 1986)
Bianculli v. Turner Construction Co.
640 A.2d 461 (Superior Court of Pennsylvania, 1994)
Kurtas v. Kurtas
555 A.2d 804 (Supreme Court of Pennsylvania, 1989)
Paden v. Baker Concrete Construction, Inc.
658 A.2d 341 (Supreme Court of Pennsylvania, 1995)
Zakian v. LILJESTRAND
264 A.2d 638 (Supreme Court of Pennsylvania, 1970)
Hileman v. Morelli
605 A.2d 377 (Superior Court of Pennsylvania, 1992)
Gagliardi v. Lynn
285 A.2d 109 (Supreme Court of Pennsylvania, 1971)
Carlos R. Leffler, Inc. v. Hutter
696 A.2d 157 (Superior Court of Pennsylvania, 1997)
Ragan v. Steen
331 A.2d 724 (Superior Court of Pennsylvania, 1974)

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Bluebook (online)
53 Pa. D. & C.4th 438, 2001 Pa. Dist. & Cnty. Dec. LEXIS 261, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelly-foundations-inc-v-able-hess-associates-inc-pactcomplallegh-2001.