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GANT v. PENN FRUIT COMPANY (12/01/75)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 1, 1975.

GANT
v.
PENN FRUIT COMPANY, INC. ET AL., APPELLANT

Appeal from order of Court of Common Pleas of Delaware County, No. 12545 of 1971, in case of Rebecca Gant v. Penn Fruit Company, Inc., Topco Associates, Inc., Delaware County Bottling Works, and Frank's Beverage Company, and Frank's Beverage Company, additional defendant.

COUNSEL

Phillip B. Silverman, with him McWilliams & Silverman, for appellant.

James F. Proud, with him Gibbons, Buckley & Smith, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 237 Pa. Super. Page 248]

The sole issue before the Court is whether appellee's preliminary objection to its joinder as an additional defendant was properly granted.

In December, 1969, plaintiff, Rebecca Gant, was injured when an unopened bottle of "Gayla" ginger ale exploded, the glass fragments cutting plaintiff who was standing three feet away at the moment of the explosion. Plaintiff's husband had purchased the soda only minutes prior to the accident from a Penn Fruit Company, Inc., retail outlet located at 9th Street and Harlan Avenue, Chester, Delaware County ("Penn Fruit").

Plaintiff initiated suit on November 29, 1971, by filing a writ of praecipe in the Delaware County Court of Common Pleas. In her complaint filed on March 3, 1972, plaintiff

[ 237 Pa. Super. Page 249]

    named as defendants Penn Fruit, Topco Associates, Inc., a supplier of Penn Fruit, ("Topco"),*fn1 and Delaware County Bottling Works, Inc., one of the bottlers of Gayla sodas and a supplier of Topco ("Delco Bottling"). The complaint alleged negligence, breach of duty under § 402 (a) of the Restatement of Torts, 2d, and breach of warranty as alternative theories of liability.

During pre-trial discovery, the plaintiff revealed that she had not retained the remains of the broken bottle. Absent a coded identification number found on the soda bottle, it was impossible for Topco to prove that Delco Bottling was responsible for plaintiff's injury because both Delco and Frank's Beverage Company*fn2 ("Frank's"), supplied Topco with "Gayla" sodas. Therefore, because Topco intended to defend on the grounds that the bottler of the soda was liable for the plaintiff's injury, Topco filed a petition on April 6, 1973, to join Frank's as an additional defendant. A hearing was held on April 19, 1973; the lower court entered an order on April 30, 1973, that granted Topco's petition and allowed Topco thirty days in which to join Frank's.

Topco alleged in its brief that it did not receive notice that its petition had been granted. In response to Topco's inquiry, the lower court sent the following letter dated September 21, 1973, to Topco's counsel: "If you would check with the Court records, you would find that an Order granting your Petition was signed on April 30, 1973." Topco did not file a praecipe to join Frank's until November 7, 1973. The writ, however, was returned without being served. In July, 1974, the writ was reissued and properly served on Frank's.

On November 29, 1974, Frank's filed preliminary objections to Topco's failure to comply with the court's April 30 order to join Frank's within thirty days. Specifically,

[ 237 Pa. Super. Page 250]

Frank's stated that "[Topco's] complaint was filed more than thirty (30) days after an Order was filed granting joinder of Additional Defendants on April 30, 1973. This Order was filed by Defendant Topco Associates, Inc. without knowledge of Frank's Beverage and in violation of the Pennsylvania Rules of Civil Procedure.

". . . [Topco's] Praecipe for Writ to Join Frank's Beverage Company as an Additional Defendant was filed on November 7, 1973 and reissued on July 10, 1974 without the knowledge of the Additional Defendant and in violation of the Pennsylvania Rules of Civil Procedure."

In an opinion dated April 3, 1975, the lower court sustained preliminary objections and dismissed the complaint against Frank's.*fn3 The court recognized that under Pennsylvania Rule of Civil Procedure 2253,*fn4 it was empowered to allow a party additional time to join an additional defendant "upon cause shown." The court, however, held that Topco's failure to comply with its order justified dismissal of the complaint. On May 5, 1975, Topco filed this appeal.

Topco contends that it has met all the requirements for late joinder of the additional defendant and that failure to permit the late joinder would violate its substantive rights. Topco, however, has misstated the legal issue. In fact, we must decide whether the lower court abused its discretion in dismissing Topco's complaint because Topco failed to comply with the court's order extending the time for joinder of an additional defendant.

[ 237 Pa. Super. Page 251]

The court's order permitting joinder was filed on April 30, 1973. Topco did not file the praecipe to join Frank's until November 7, 1973. Topco attempts to justify the delay as follows: Topco alleges that the Delaware County Prothonotary failed to comply with Rule 236, Pa.R.C.P., which provides that "[t]he prothonotary shall immediately give written notice by ordinary mail of the entry of any order, decree or judgment: . . . .

"(2) in all other cases, to each party who has appeared in the action or to his attorney of record." According to Topco, it finally received notice of the order on September 21, 1973. It attempts to explain the extensive delay after receiving notice as follows: "As soon as [counsel for Topco] became aware of the outstanding order, the procedure to effectuate the joinder was commenced. It would have added additional time, well beyond 6 weeks, to file another petition and obtain another order for late joinder."

Counsel for Frank's points out a simple fact which negates Topco's allegation that the prothonotary was required to send it notice of the court's order. Rule 236 was promulgated October 4, 1973, effective December 1, 1973, and, therefore, not applicable to the case at bar.*fn5 The commentary to Rule 236, Goodrich-Amram, Standard

[ 237 Pa. Super. Page 252]

Pennsylvania Practice, (1975 Supplement), § 236 at 146, notes that "[i]n practice, however, it was customary in many counties for the Court itself, or through the prothonotary, to give some form of notice in all actions of all orders, entered in matters before it. . . .

"In some counties notice was given only to the moving party and local practice required him to give notice to his opponent of the court's action." Because Rule 236 was not in effect at the time in question, it can hardly be cited to mitigate Topco's failure to file a praecipe to join the additional defendant.

Further, even after Topco received the lower court's letter (with the court's polite suggestion that Topco check the court records), Topco still did not comply within the thirty days granted by the court's April 30 order. Given Topco's dilatory handling of the case throughout the proceedings*fn6 and its delay of over six months in complying with the lower court's April 30 order, we find that the lower court did not abuse its discretion in dismissing Topco's complaint against Frank's.*fn7

The order of the lower court is affirmed.

Disposition

Order affirmed.


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