Loading...
HomeMy WebLinkAbout2001-0094 CIVILMELINDA D. DURHAM, KEITH HAMMAKER and LYDIA R. HAMMAKER, A MINOR, BY MELINDA D. DURHAM, HER GUARDIAN, Plaintiffs HOLLY PIKE TRADING COMPANY, INC. t/a MIDWAY TAVERN, MARSON, INC. t/a BLESSED OLIVER PLUNKETT and HEATHER WEAVER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2001-0094 CIVIL TERM CIVIL ACTION - LAW IN RE: PETITION TO JOIN ADDITIONAL DEFENDANT BEFORE HOFFER, P.J., OLER, GUIDO, JJ. OPINION AND ORDER OF COURT Before us is the petition of defendant Weaver to join an additional defendant. Since a joinder complaint was not filed within sixty (60) days after service of the original complaint, defendant Weaver must seek court approval which will be granted upon "cause shown." Pa.R.C.P. 2253. The following facts are established by the record or are uncontested.~ The action arises out of an automobile accident which occurred on April 8, 2000. Defendant Weaver 1 At oral argument, we suggested that an evidentiary hearing might be appropriate to create a record. All counsel felt this was unnecessary. NO. 2001-0094 CIVIL lost control of her car and collided head on with plaintiffs' vehicle. Defendant Weaver had been drinking heavily prior to the accident. The complaint was filed on January 5, 2001. It alleged that the Midway Tavern (hereinafter "defendant Midway") and the Blessed Oliver Plunkett (hereinafter "defendant Plunkett") served alcohol to the visibly intoxicated defendant Weaver. The complaint also alleged that she had been drinking earlier in the day at the Carlisle Gingerbread Man. In April, 2001, counsel for the parties were contacted by defendant Weaver to determine whether they would agree to the late joinder of the Gingerbread Man as an additional defendant.2 At that time, plaintiffs' counsel agreed that he would concur in the joinder. However, defendant Plunkett's counsel indicated that he would have to take the request under advisement. In the middle of September, 2001, defendant Plunkett's counsel finally advised of his opposition to the joinder. Defendant Weaver did not file her petition for late joinder until January 10, 2002. Since almost eight months had elapsed from the time his original concurrence was given, plaintiffs' counsel objected to the late joinder on the grounds that it will unnecessarily delay trial. Defendant Weaver offers no valid excuse for the delay in filing the petition.3 However, she contends that it should be granted because plaintiffs will suffer no prejudice. : The complaint had been served upon her more than sixty (60) days prior to the request. ~ The parties agree that the delay between the filing of the complaint and April, 2001, was excusable. Defendant Weaver argues that the delay between April and September was excusable because she was waiting to get the concurrence of defendant Plunkett. We disagree. Nothing prevented her from filing the petition, as she eventually did, without the concurrence of defendant Plunkett. Further, she does not even attempt to excuse the four-month delay that occurred after she became aware of defendant Plunkett's objection to joinder. NO. 2001-0094 CIVIL The law applicable to this case was stated by our Superior Court as follows: In this jurisdiction, an additional defendant may be joined no later than sixty (60) days after service upon the original defendant of the initial pleading "unless such filing is allowed by the court upon cause shown." Pa.R. Civ. 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 .... Mutuallndustries, Inc. v. Weinberg, 621 A.2d 140, 143 (Pa. Super. 1993). In Weinberg, the lower Court granted a petition for joinder almost seven months after the complaint had been filed. While the plaintiff had not objected to the joinder, the additional defendant did. The Superior Court affirmed the dismissal of the joinder complaint on the additional defendant's preliminary objections. It held that petitioner had not presented a reasonable justification for the delay, noting that "the information which prompted appellant to seek j oinder of the appellee was in his (appellant 's) possession at all times relevant to the calculation of the time flame provided for under Rule 2253." (emphasis in original). 621 A.2d at 143. The facts in the instant case cannot be distinguished from those in Weinberg, supra. The information which prompted defendant Weaver to seek joinder was contained in the complaint itself. She has not offered any reasonable justification for her failure to file the petition before September, 2001. She has not offered any explanation, reasonable or otherwise, for the delay between September, 2001 and January, 2002. We are also mindful that plaintiffs no longer agree to the late joinder. Understandably, they feel prejudiced by the delay of almost one year since their original concurrence was given. As Judge Hess stated in addressing a similar issue: NO. 2001-0094 CIVIL 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 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 rule. Yentzer v. Heck, 2056 Civil 1999. Those words apply equally to the case at bar. In view of the above, we are constrained to deny defendant Weaver's request to join an additional defendant at this late date. Therefore, we will enter the order that follows. ORDER OF COURT AND NOW, this 10TM day of APRIL, 2002, defendant Weaver's request to join the Gingerbread Man, Inc. as an additional defendant is DENIED. By the Court, /s/Edward E. Guido Edward E. Guido, J. James W. Abraham, Esquire For the Plaintiff Karl E. Rominger, Esquire Mark Bayley, Esquire For the Defendant :sld