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HomeMy WebLinkAbout99-2056 civilBOBBI JO SHEETZ YENTZER, Plaintiff VS. ROBERT HECK, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-2056 CIVIL CIVIL ACTION- LAW IN RE: PETITION TO JOIN ADDITIONAL DEFENDANT ORDER AND NOW, this /"/° day of December, 1999, following hearing thereon, the motion of the defendant for joinder of an additional defendant is DENIED. B Y THE COURT, John R. Ninosky, Esquire For the Plaintiff K~. Hess, J. Christopher J. Knight, Esquire For the Defendant :rlm BOBBI JO SHEETZ YENTZER, Plaintiff VS. ROBERT HECK, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 99-2056 CIVIL CIVIL ACTION- LAW 1N RE' PETITION TO JOIN ADDITIONAL DEFENDANT MEMORANDUM AND ORDER In this case, the defendant has petitioned for leave to join an additional defendant beyond the time period allowed by law. The action arises out of a motor vehicle accident which occurred on April 11, 1998. The complaint was filed in April of 1999. The defendant was served with a copy of the complaint on or about April 16, 1999. Thereafter, Mr. Heck contacted his insurance carrier which, believing that Mr. Heck was not liable, took no action. In July of 1999, the plaintiff filed and served a notice of intention to seek default judgment. Several days later, the insurer, Allstate Insurance Company, referred the matter to counsel. Counsel promptly obtained an agreement for an extension of time within which to file an answer. Defense counsel met with Mr. Heck in mid-August of 1999 and during that meeting defense counsel reached the conclusion that all or part of the responsibility for the damage to the plaintiff' s vehicle should be borne by the driver of the plaintiff' s vehicle, Jeffrey Yentzer. Mr. Heck, of course, had been aware of the circumstances surrounding the accident from the day it happened. He had been transporting some personal items situated in boxes in the back of a pick-up truck when one of the boxes became dislodged, falling from the rear of the truck and 99-2056 CIVIL landing on the roadway. The operator of the plaintiff's vehicle, which had been the third vehicle behind Mr. Heck, was unable to stop before impacting the vehicle immediately in front of him. At the hearing in this matter, we said that we were inclined to allow the joinder of the additional defendant in this case. Further reflection, however, convinces us that this initial inclination was erroneous. In Pennsylvania, an additional defendant may not be joined later than sixty days after service upon the original defendant of the initial pleading "unless such filing is allowed by the court upon cause shown." Pa.R.C.P. 2253. "Whether there is 'cause shown' sufficient to allow late joinder of an additional defendant is a matter within the discretion of the court, and its discretion will not be reversed absent an abuse of discretion. Zakian v. Liljestrand, 438 Pa. 249, 264 A.2d 638 (1970)." Mutual Industries Inc. v. Weinberg, 621 A.2d 140, 143 (Pa. Super. 1993). The burden of demonstrating sufficient cause to allow the unseasonable joinder of an additional defendant rests with the defendant. N.P.W. Medical Center v. L.S. Design Group, P.C., 353 Pa. Super. 341,509 A.2d 1306 (1986): The court ... 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 sixty-day limitation was placed on its unrestricted use. In a capsule, these roles are 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. Id__:. at 153, qutoing Zakian v. Liljestrand,'supra. 99-2056 CIVIL Our appellate courts have regularly upheld the refusal of lower courts to grant late joinder of additional defendants. In Glabbatz v. Terminal Freight Handling Co., 386 Pa. Super. 447, 563 A.2d 151 (1989), there was an attempt to join an additional defendant approximately five and one-half months after the service of the original complaint. The reason given for the delay in joinder was that the defendant used the intervening time in an attempt to settle the case. The Superior Court upheld the trial court's dismissal of the joinder complaint. In Mutual Industries Inc. v. Weinberg, supra, a petition for joinder of an additional defendant, being uncontested by the plaintiff, was granted almost seven months after the filing of the complaint. The preliminary objections of the additional defendant, however, were subsequently sustained and this action was affirmed. The reason given by the Superior Court was that the "information which prompted the appellant to seek joinder of the appellee was his (appellant's) possession at all times relevant to the calculation of the time-frame provided for under Rule 2253.''~ In Conul v. Burk, M.D., 403 Pa. Super. 400, 589 A.2d 246 (1991) a delay of seven months was also not excused. In that case, the Superior Court concluded that the defendant could have, by the exercise of reasonable diligence, discovered the liability of the additional defendant and rejected defense counsel's explanation that part of the delay was caused by the "press of work." In this case, the defendant had actual knowledge of the involvement of the additional defendant from the moment the complaint was served. No action was taken until the defendant was served with a notice of default judgment. We are at a loss to discern good cause for the late ~ Pennsylvania Rule of Civil Procedure 2253 reads: "Except as provided by Rule 1041.1 (e), [dealing with asbestos litigation] neither praecipe for a writ to join an additional defendant nor a complaint if the joinder iscommenced by a complaint, shall be filed by the original defendant or an additional defendant later than sixty days after the service 99-2056 CIVIL joinder of the additional defendant. In any event, its effect in this case would be to reward the defendant's inattentiveness to the sole detriment of the plaintiff. This is clearly not the result intended by the role. ORDER AND NO W, this day of December, 1999, following hearing thereon, the motion of the defendant for joinder of an additional defendant is DENIED. BY THE COURT, John R. Ninosky, Esquire For the Plaintiff ss, J. Christopher J. Knight, Esquire For the Defendant :rlm 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."