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HomeMy WebLinkAbout99-3184 civilEARL L. KNISELY and MARGARET D. KNISELY, Plaintiffs Vo CONSOLIDATED RAIL CORPORATION, Defendant ' IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. 99-3184 CIVIL TERM · ' CIVIL ACTION- LAW : IN RE' PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFFS' SECOND AMENDED COMPI~AINT .,B, EFORE BAYLEY~ GUIDO~ JJ. AND NOW, this ORDER OF COURT day of JUNE, 2001, for the reasons set forth in the accompanying opinion, Plaintiffs' Preliminary Objections to Defendant's Answer with New Matter to Plaintiffs' Second Amended Complaint are DISMISSED. By Edward E. Guido, J. G. Sander Davis, Esquire For the Plaintiffs Craig J. Staudemaier, Esquire For the Defendants 'sld EARL L. KNISELY and MARGARET D. KNISELY, Plaintiffs ge CONSOLIDATED RAIL CORPORATION, Defendant · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA o · NO. 99-3184 CIVIL TERM · CIVIL ACTION- LAW IN RE' PLAINTIFFS' PRELIMINARY OBJECTIONS TO DEFENDANT'S ANSWER WITH NEW MATTER TO PLAINTIFFS' SECOND AMENDED COMPI.AINT BEFORE BAYLEY, GUIDO, JJ. OPINION AND ORDER OF COURT Before us are plaintiffs' preliminary objections requesting that we strike defendant's answer to their second amended complaint. For the reasons hereinafter set forth, the preliminary objections will be denied. FACTUAL BACKGROUND On May 26, 1999, plaintiff Earl Knisely commenced this action by filing a two- count complaint. The first count contained a claim under the Federal Employer's Liability Act.~ The second count sounded in common law negligence. Defendant filed timely preliminary objections to both counts. Prior to the disposition of those objections, plaintiffs filed an amended complaint. On July 16, 1999, defendant filed a second set of preliminary objections which were addressed only to the FELA claim contained in count one. ~45 U.S.C. § 51 et seq. 99-3184 CIVIL TERM Defendant's preliminary objections to the amended complaint were briefed and argued by the parties. On November 16, 1999, the Honorable Edgar B. Bayley filed an opinion and order dismissing those preliminary objections. Defendant never filed an answer to the amended complaint. Over the next five months there was extensive docket activity involving discovery motions. The docket reflects no activity from April 14, 2000, until plaintiffs' current counsel entered his appearance on December 4, 2000. Thereafter, the docket activity increased significantly. On December 28, 2000, defendant filed a motion for partial summary judgment in connection with the FELA count. On January 17, 2001, counsel for both parties filed a stipulation allowing plaintiff to file a second amended complaint.2 The stipulation provided as follows' o , o (emphasis added). The Second Amended Complaint attached to this. stipulated (sic) shall be filed of record. The Defendant's answer filed to the Plaintiff's Amended Complaint filed in this matter shall be deemed to apply to and be responsive to this Second Amended Complaint without the necessity of the Defendant filing any additional pleading. Insofar as the Second Amended Complaint makes any new allegations or claims, or contains any different wording, the Defendant shall be presumed to deny all of same as if a specific answer were filed to such changes. The filing of this Second Amended Complaint shall not affect in any way Defendant's pending Motion for Partial Summary Judgment. 2 The second amended complaint added a claim for past and furore medical bills (paragraph 28). It also added plaintiff's wife, Margaret D. Knisely, as a party plaintiff and included a loss of consortium claim on her behalf. It was filed two days before the statute of limitations expired. 99-3184 CIVIL TERM On February 9, 2001, plaintiffs' counsel filed a brief in opposition to defendant's motion for partial summary judgrnent.3 Defendant's failure to file an answer was raised for the first time in that brief.4 Defendant's counsel received a copy of the brief on February 12, 2001 .s He immediately filed an answer to plaintiffs' second amended complaint.6 The plaintiffs ask us to strike that answer as untimely. DISCUSSION pursuant to Pa. R.C.P. 1028(d) defendant's answer to plaintiffs' amended complaint should have been filed on December 6, 1999, twenty (20) days after Judge Bayley denied its preliminary objections. Plaintiffs argue that the delay of fourteen (14) months is inexcusable. Therefore, they contend that defendant's answer with new matter to their second amended complaint should be stricken. This argument is not supported by law, reason, or common sense. Even if we were being asked to strike an untimely answer to the amended complaint, we would still be inclined to deny the request. "It is left to the sound discretion of the trial court 'to permit a late filing of a pleading where the opposing party will not be prejudiced and justice so requires.'" Gavle v. Mercy Catholic Medical Center, 698 A.2d 647, 649 (Pa. Super. 1997) quoting from Ambrose v. Cross Creek Condominiums, 412 Pa. Super. 1, 10, 602 A.2d 864, 868 (1992). Pa. Rule of Civil Procedure 126 requires that: The roles shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are 3 Plaintiff's Preliminary Objections to Defendant's Answer with New Matter to Plaintiff's Second Amended Complaint, paragraph 6. (The brief was filed with the Court Administrator pursuant to local role and is, therefore, not part of the record.) 4Id. 5 Id. paragraph 7. 6 According to the docket, the answer with new matter was filed that very same day. 99-3184 CIVIL TERM applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial fights of the parties. In accord with Rule 126, the Supreme Court has often held that the timing requirements of the pleading roles are "not mandatory but permissive." Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 313 681 A.2d 167, 170 (1996). In Peters_, supra, the Supreme Court held that "the trial court does not abuse its discretion in striking a pleading as untimely where it finds that a party's blatant disregard for the time limits established by the Rules of Civil Procedure, without just cause for the delay, constitutes an abject indifference to the Rules.", 681 A.2d at 170. In the instant case we are satisfied that defendant's failure to file an answer to plaintiffs' amended complaint was not the result of an "abject indifference" to the Rules. We find as a fact that the parties were laboring under the mistaken assumption that an answer had been filed. This is clear from the stipulation executed by counsel on January 17, 2001, which provided that "(D)efendant's answer filed to the Plaintiffs' Amended Complaint... shall be deemed to apply to and be responsive to this Second Amended Complaint..." (emphasis added). The assumption, albeit mistaken, by both parties that an answer had been filed amounts to "just cause" for the delay. Since we are not persuaded that plaintiffs have suffered any prejudice, we would not be inclined to strike as untimely an answer to plaintiffs' amended complaint. However, plaintiffs ask us to strike the answer to their second amended complaint. That answer was filed only twenty-six (26) days after the second amended complaint.7 Plaintiffs argue that it is also untimely since, pursuant to Pa. R.C.P. 1026(a), 7 It was also filed Within hours after defense counsel was made aware that he had inadvertently neglected to file an answer to the previous complaint. 99-3184 CIVIL TERM it should have been filed within twenty (20) days. Actually, under the Rule, it should have been filed twenty (20) days after service of the second amended complaint. Since there is nothing in the record to indicate when service was made, we cannot conclude that defendant's answer is untimely. We also note that plaintiffs' second amended complaint failed to contain a notice to plead or notice to defend as required by Pa.R.C.P. 1026(a). Perhaps this is because both parties assumed that no responsive pleading would be necessary in light of the stipulation referred to above. In any event, both parties have committed errors of procedure. We are satisfied that none of those errors have in any way affected the substantial fights of either party. In light of all the circumstances, we are convinced that justice will best be served by denying plaintiffs' preliminary objections. ORDER OF COURT AND NOW, this 20TM day of JUNE, 2001, for the reasons set forth in the accompanying opinion, Plaintiffs' Preliminary Objections to Defendant's Answer with New Matter to Plaintiffs' Second Amended-Complaint are DISMISSED. By the Court, G. Sander Davis, Esquire Craig J. Staudemaier, Esquire :sld /s/Edward E. Guido Edward E. Guido, J.