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Home My WebLink About94-4178 CivilLIBERTY EXCAVATORS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : LOBAR ASSOCIATES, INC., : Defendant : NO. 94-4178 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR LEAVE OF COURT TO JOIN FRANCIS HEISSE AS AN ADDITIONAL DEFENDANT BEFORE HOFFER and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of October, 1995, upon careful consideration of Defendant's Petition for Leave of Court To Join Francis Heisse as an Additional Defendant, as well as the briefs and oral arguments presented in the matter, the Petition is GRANTED. THE Defenaant, Lobar Associates, Inc., may file a complaint joining Francis Heisse as an additional defendant within 20 days from the date of entry of this Order. BY THE COURT, John A. Gill, Esq. 75 Utley Drive Camp Hill, PA 17011 Attorney for Plaintiff John H. Frymyer, Jr., Esq. 2306 Columbia Avenue Lancaster, PA 17603 Attorney for Defendant :rc LIBERTY EXCAVATORS, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : v. : CIVIL ACTION - LAW : LOBAR ASSOCIATES, INC., : Defendant : NO. 94-4178 CIVIL TERM IN RE: DEFENDANT'S PETITION FOR LEAVE OF COURT TO JOIN FRANCIS HEISSE AS AN ADDITIONAL DEFENDANT BEFORE HOFFER and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This is an action for breach of contract instituted by'a subcontractor on a project for the construction of a pool and bathhouse for the West Shore Country Club against the general contractor for the project. Presently before the court is Defendant's petition for leave of court to join Francis Heisse, a second subcontractor on the project, as an additional defendant. STATEMENT OF FACTS Plaintiff is Liberty Excavators, Inc., a Pennsylvania corporation with its principal place of business situate at 1104 Fernwood Avenue, Camp Hill, Cumberland County, Pennsylvania, 17011. Defendant is Lobar Associates, Inc., a Pennsylvania corporation, with its principal place of business situate at 1 Old Mill Road, Dillsburg, York County, Pennsylvania. Plaintiff commenced this action by filing a complaint on July 26, 1994, in which it alleged that DefendaHt as general contractor breached its agreement with Plaintiff as subcontractor by failing to pay Plaintiff the full amount due under the agreement and by failing to pay Plaintiff for additional work Defendant requested NO. 94-4178 CIVIL TERM Plaintiff to perform. On September 6, 1994, Defendant filed its Answer with New Matter and Counterclaim to Plaintiff's Complaint in which Defendant denied any liability to Plaintiff. On October 7, 1994, Plaintiff filed its Reply to Defendant's Answer Containing New Matter and Counterclaim. On October 27, 1994, Defendant filed its counter-reply to Plaintiff's new matter. On September 27, 1994, Francis Heisse, the proposed additional defendant in this matter, commenced a separate action in this court against Lobar Associates, Inc., the Defendant in the instant suit, for breach of a subcontract and unjust enrichment with regard to the project for the construction of a pool and bathhouse for.the West Shore Country Club.~ In .response to preliminary objections filed by Lobar Associates, Inc., Heisse filed an amended complaint on or about October 31, 1994. Under the contract of Defendant Lobar Associates, Inc.t with the owner of the West Shore Country Club, all of Defendant's work, which included all of the proposed additional defendant's work under the subcontract, was to be completed on or before January 1, 1994. Defendant Lobar Associates, Inc., in its Petition for Leave of Court to join Francis Heisse as an Additional Defendant, avers the following additional facts: As a result of the proposed additional defendant's failure to properly ~erform its work on the project in a good and workmanlike manner, completion of the project ~Heisse v. Lobar Associates, Inc., No. 5507 Civil Term 1994. 3 NO. 94-4178 CIVIL TERM was delayed from January 1, 1994 to April 15, 1994. As a result of said delay, the work of Defendant and of other subcontractors on the project was similarly delayed. Furthermore, Defendant avers that (1) the statement of facts alleged in Plaintiff Liberty Excavators' complaint is sufficient to render the proposed additional defendant alone liable, or liable with or liable over to Defendant Lobar Associates, Inc.; (2) the proposed joinder would not work an undue hardship upon the proposed additional defendant nor prejudice his substantive rights, since Heisse is currently litigating the same or similar issues in the separate action he has commenced in this court; (3) Plaintiff Liberty Excavators, Inc., will not be prejudiced by the proposed joinder since Liberty Excavators, Inc., is presently an additional defendant in the action commenced by Heisse and is already involved in the litigation of these issues; (4) Defendant Lobar Associates, Inc., will be severely prejudiced if not granted permission to join Heisse as an additional defendant, since the refusal would preclude Lobar from seeking indemnification in this action; (5) the joinder of Heisse will not serve to delay Plaintiff's case, inasmuch as the parties are still in the discovery stage; (6) it would be a waste of judicial resources to require Defendant Lobar Associates, Inc., to institute a new action to seek inde~Lnification from Heisse if it should be found liable to Plaintiff Liberty Excavators, Inc.; and (7) reasonable justification or excuse exists for the delay, in 4 NO. 94-4178 CIVIL TERM that Heisse's Amended Complaint was not filed until eighty-seven days after Plaintiff Liberty Excavators, Inc., commenced this action, and Defendant .Lobar Associates, Inc., did not have available all the information needed to petition the court earlier to join Heisse as an additional defendant. This matter is presently before the court for disposition. STATEMENT OF LAW Pennsylvania Rule of Civil Procedure 2253 provides the following with regard to the time for joining an additional defendant: Except as provided by Rule 1041.1(e) [relating to asbestos litigation], 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 sixty 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. Initially, it should be noted that "procedural rules applicable to controversies involving third party procedure should be liberally construed to avoid a multiplicity of lawsuits." Exton Dev. v. Sun Oil Co. of Pa., 363 Pa. Super. 17, 22, 525 A.2d 402, 404 (1987). With regard to a petition for late ~oinder, the following principles of law are applicable where defendant does not join an additional defendant within the sixty-day period provided for in 5 NO. 94-4178 CIVIL TERM Pa. R.C.P. 2253: The defendant has the burden of demonstrating sufficient cause to permit the late joinder. Lamoree v. Penn Cent. Transp. Co., 238 Pa. Super. 380, 357 A.2d 595 (1976). "The question of whether sufficient cause has been established so as to permit an extension of time for the joining of an additional defendant is a matter resting within the discretion of the trial court. And its decision in this regard will not be disturbed absent an abuse of discretion." Id. at 384, 357 A.2d at 596-97. The court, in determining what is sufficient cause for an extension of time for defendant to file a praecipe joining an additional defendant, "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 rules 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." Zakian v. Liljestrand, 438 Pa. 249, 256, 264 A.2d 638, 641 (1970) (citations omitted). With regard to the possible prejudice resulting from a late joinder the following is instructive: "The standards which should be applied in determining good cause ~nclude balancing the importance of not delaying the trial of plaintiff's action against the avoidance of multiplicity of suits. In exercising its 6 NO. 94-4178 CIVIL TERM discretion the court must consider the length of the delay in seeking joinder in the entire context of the case. If the extension will prejudice any party or delay the trial of the case, the extension should be refused." 7 Goodrich-Amram ~2253:6, at 186 (1992). "Prejudice to an additional defendant in a late joinder does not mean the normal prejudice which always follows joinder in a lawsuit. There must be a detriment independent of that." Id., at 192. APPLICATION OF LAW TO FACT Applying the foregoing principles of law to the facts of this case, the court does not believe that any possible prejudice to the proposed additional defendant is so severe as to preclude joinder at this date. In addition, the court is of the opinion that the joinder of Francis Heisse will save both the time and expense generated by a multiplicity of suits and, most importantly, will not further retard the Plaintiff's right to an expeditious disposition of its cause. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this ~ day of October, 1995, upon careful consideration of Defendant's Petition for Leave of Court To Join Francis Heisse as an Additional Defendantj as well as the briefs and oral arguments presented in the matter, the Petition is GRANTED. 7 NO. 94-4178 CIVIL TERM THE Defendant, Lobar Associates, Inc., may file a complaint joining Francis Heisse as an additional defendant within 20 days from the date of entry of this Order. BY THE COURT, J. Wesley Oler, . J. John A. Gill, Esq. 75 Utley Drive Camp Hill, PA 17011 Attorney for Plaintiff John H. Frymyer, Jr., Esq. 2306 Columbia Avenue Lancaster, PA 17603 Attorney for Defendant :rc