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MARNELL v. CROSS (12/06/52)

December 6, 1952

MARNELL
v.
CROSS, APPELLANT



Appeal, No. 214, March T., 1952, from judgment of Court of Common Pleas of Erie County, May T., 1951, No. 469, in case of Josephine Marnell, Admrx., Estate of Michael Marnell, deceased, v. Curtis D. Cross and Frank Marnell. Judgment reversed.

COUNSEL

T. P. Dunn, for appellant.

John M. Wolford, for appellee.

Before Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Musmanno

[ 372 Pa. Page 83]

OPINION BY MR. JUSTICE MUSMANNO

On April 15, 1950, Michael Marnell, while a passenger in a car owned and driven by Frank Marnell, was injured when this car came into collision with an automobile owned and driven by Curtis D. Cross. Michael Marnell died of his injuries on August 13, 1950.

On May 7, 1951, Josephine Marnell, as administratrix of the Estate of Michael Marnell, brought suit against Curtis D. Cross. On March 18, 1952, Curtis D. Cross, after the statute of limitations had run on a wrongful death action against Frank Marnell, filed a petition in court (with the consent of the plaintiff) asking for an extension of time within which to file a praecipe joining Frank Marnell as additional defendant. This petition was filed under Rule 2253 of the Pennsylvania Rules of Civil Procedure which 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."

The "cause" advanced by the defendant was "... that because both parties (plaintiff and defendant) lived out of Erie they would find out more about this case, explore the possibilities of settlement and that neither party would be prejudiced by delays in pleadings otherwise required by the rules."

The Court below granted the extension and on March 20, 1952, the defendant filed his praecipe to join the additional defendant. He also filed on the same day the necessary complaint.

Whether or not there was good cause shown for the granting of the extension of time was a matter within the discretion of the court below. In Moore v. Moore Distilling

[ 372 Pa. Page 84]

    the sixty days allowed by Rule 2253. Had the court refused the request for extension when initially presented, it may well be that the defendant could have asserted further valid reasons in support of his request, or it could be that the plaintiff would have proceeded against the party sought to be named as additional defendant. The court by its order of March 18, 1952, lulled the attorney for the original defendant into a sense of security which the court could not nullify without evidence of misrepresentation or fraud of some kind, none of which has been asserted ...


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