Appeals, Nos. 106 and 107, March T., 1952, from order of Court of Common Pleas of Allegheny County, April T., 1949, Nos. 2047 and 2048, in cases of Potter Title and Trust Company, Admr., estate of Gorden C. Aley, deceased, v. Lattavo Brothers, Inc., and Potter Title and Trust Company, Admr., estate of Charles Albert Darr, deceased v. Same. Order affirmed.
Joseph F. Weis, Jr., with him Sherriff, Lindsay, Weis & McGinnis, for appellant.
Bruce R. Martin, with him Dalzell, Pringle, Bredin & Martin, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
These appeals are from an order quashing a writ to join the Pennsylvania Railroad Company as additional defendant and dismissing the complaint in trespass filed against the Company by defendant, Lattavo Brothers, a corporation.
The actions were instituted following a collision between a locomotive of the Pennsylvania Railroad Company (hereinafter called the railroad) and a truck of defendant near Uhrichsville, Ohio, on October 26, 1948. The engineer and fireman of the locomotive were killed in the accident and the administrators of their estates brought these suits against Lattavo Brothers as defendant on February 23, 1949. Amended complaints were filed by plaintiffs on December 13, 1949, and on April 16, 1951, defendant presented a petition for an extension of time to join the railroad as additional defendant. The prayer of this petition was granted and on May 1, 1951, a complaint was served on the railroad averring that it was solely liable for the deaths
of plaintiffs, and that it should be joined as additional defendant. The railroad filed preliminary objections to this complaint, alleging inter alia, that it was defective on its face because defendant had failed to comply with the provisions of Rule 2253 of the Pennsylvania Rules of Civil Procedure in not attempting to join the railroad as an additional defendant until more than sixty days after the filing of plaintiffs' amended complaint. Following argument, the learned court below sustained the railroad's objections and ordered defendant's complaint stricken from the record, whereupon defendant took this appeal.
Rule 2253 of the Pennsylvania Rules of Civil Procedure provides: "No praecipe for a writ to join an additional defendant shall be filed by the original defendant or an additional defendant later than sixty (60) 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." As an excuse for its failure to obtain a writ to join the railroad until sixteen months after the filing of plaintiffs' amended complaints, defendant averred in its petition for joinder that it had been awaiting the outcome of a suit which arose from the same accident and had been instituted by Mack E. Miller against the railroad. The fact that defendant considered that suit a test case which might determine the railroad's liability as well as its own in the instant matter, is no justification for its delay. It was aware of the time limit provision of Rule 2253 and deliberately chose not to join the railroad within the prescribed period. Lacking a better reason for extending the time of filing its praecipe than that which it has averred, defendant should be bound by its choice. For to permit the joinder of the railroad twenty-five months after service of plaintiffs'
complaint on defendant would not only be violative of Rule 2253, but ...