Appeals from orders of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1968, No. 708, in case of John McDevitt v. Avis Rent-A-Car Systems, Inc. v. General Motors Corporation et al.; same v. Maxon Industries, Inc. et al.
James P. Gannon, with him Thomas J. Beagan, Jr., for defendant, appellant.
W. Bradley Ward, with him Ira Tiger, and Schnader, Harrison, Segal & Lewis, for additional defendant, appellee.
Lynn L. Detweiler, with him Curtis P. Cheyney, III, and Swartz, Campbell & Detweiler, for additional defendant, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Cohen took no part in the consideration of this case. Dissenting Opinion by Mr. Justice Pomeroy.
These appeals arise out of an action in trespass for personal injuries and concern the scope of a trial court's power to disallow a defendant's petition for the joinder of additional defendants.
On October 14, 1968, John McDevitt filed a complaint in trespass in the Philadelphia Court of Common Pleas alleging that he had suffered various personal injuries on January 31, 1968, as a result of the negligence of defendant-appellant Avis Rent-A-Car System, Inc. On January 8, 1970, more than fourteen months later, Avis petitioned the trial court for leave to join certain additional defendants, including appellees General Motors Corporation and Maxon Industries, Inc. By an ex parte order of the same date, the trial court granted Avis twenty days in which to effect joinder, with the proviso that the order was being granted "without prejudice to any rights of proposed additional defendants". A writ to join the additional defendants was issued on January 22, 1970 and Avis's complaint against the additional defendants was filed on February 2, 1970, two days after the expiration of the statute of limitations applicable to the underlying trespass action.
After being served, General Motors and Maxon Industries each filed preliminary objections to Avis's complaint on the ground that their joinder was untimely. On May 13, 1970, and May 25, 1970, respectively, the trial court sustained these preliminary objections,
struck the writ to join General Motors and Maxon Industries as additional defendants, and vacated its prior order allowing such joinder. The present appeal follows:
Pa. R.C.P. No. 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." (Emphasis added.) The attempted joinder in the instant case was made many months beyond the sixty-day limit, and the trial court, after consideration of appellees' preliminary objections, found that there was no "cause shown" for the lengthy delay.
Avis does not challenge the proposition that an additional defendant is generally entitled to contest his joinder by filing preliminary objections to the original defendant's complaint. See, e.g., Potter Title & Trust Co. v. Lattavo Bros. Inc., 370 Pa. 374, 88 A.2d 91 (1952). This opportunity is especially necessary where the initial order granting joinder is ex parte. The granting of leave to join an additional defendant more than sixty days after plaintiff's original pleading involves an exercise of the court's discretion, Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970), and if the proposed additional defendant is not given an opportunity to be heard at the time of the original exercise of that discretion, he ...