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ZAKIAN v. LILJESTRAND ET AL. (04/22/70)

decided: April 22, 1970.

ZAKIAN
v.
LILJESTRAND ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Delaware County, No. 877 of 1967, in case of Virginia Zakian, a minor, by her parents and natural guardians, Aram Zakian and Charlotte Zakian et al. v. Alan Liljestrand et al.

COUNSEL

Robert B. Surrick, with him Cramp & D'Iorio, for appellants.

Joel Friedman, with him Paul N. Minkoff, and Klovsky, Kuby and Harris, for appellees.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Eagen

[ 438 Pa. Page 251]

This is an appeal by defendant Alan Liljestrand from an order of the Court of Common Pleas of Delaware

[ 438 Pa. Page 252]

County, refusing to permit the joinder of Ralph Spieglemann as an additional defendant pursuant to Rule 2253 of the Pennsylvania Rules of Civil Procedure.

The suit arose as a result of an automobile accident which occurred on October 23, 1965, in which the minor plaintiff, Virginia Zakian, sustained personal injuries. She had been a passenger in an automobile operated by defendant Robert Sandberg at the time of a head-on collision with a vehicle owned by Theodore Liljestrand and operated by Alan Liljestrand. Ralph Spieglemann, the proposed additional defendant, has been identified as the operator of a third vehicle near the scene of the accident, and is alleged to have contributed to or been the sole cause thereof.

Rule 2253 provides: "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 (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."

In this case the plaintiffs' complaint was served on defendants Alan and Theodore Liljestrand*fn1 on June 24, 1967. No attempt was made by Alan Liljestrand to join any additional defendant within the sixty days specified in the Rule. However, on June 9, 1969, almost two years after plaintiffs' complaint had been served upon him, he petitioned the court for leave to join Ralph Spieglemann nunc pro tunc as an additional defendant. The court denied the petition in an order dated July 28, 1969. Alan Liljestrand appealed to this Court on September 8, 1969, 42 days later.

[ 438 Pa. Page 253]

Initially appellees claim that this appeal should be quashed on two alternative grounds: (1) The issue resolved by the lower court concerned the jurisdiction of that court over the person of the proposed additional defendant, and, therefore, any appeal from the decision thereon must be pursued in accordance with the terms of the Act of March 5, 1925, P. L. 23, 12 P.S. §§ 672-675, which require that an appeal "be taken and perfected within fifteen days from the date when the decision is rendered; . . . ."; or (2) Under the Act of December 2, 1968, P. L. [ILLEGIBLE WORD], 12 P.S. §§ 1111.1, ...


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