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LAMOREE v. PENN CENTRAL TRANSPORTATION COMPANY ET AL. (02/02/76)

decided: February 2, 1976.

LAMOREE
v.
PENN CENTRAL TRANSPORTATION COMPANY ET AL., APPELLANTS



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, No. 415, in case of Clifford W. Lamoree v. Penn Central Transportation Co., George P. Baker, Richard C. Bond and Jervis Langdon, Jr., trustees.

COUNSEL

Richard L. Goerwitz, Jr., with him Swartz, Campbell & Detweiler, for appellants.

Peter M. Clark, with him J. Grant McCabe, III, and Rawle & Henderson, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 238 Pa. Super. Page 382]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of a proposed additional defendant and dismissing the defendants' complaint.*fn1

The litigation arose as a result of personal injuries sustained by the plaintiff on February 19, 1972, when he allegedly fell on the premises of the defendant, Penn Central Transportation Company. Plaintiff originally filed suit in the Court of Common Pleas of Delaware County on December 14, 1972. The defendants were served with this complaint on January 4, 1973. This suit was, however, voluntarily discontinued on April 10, 1974.

Plaintiff instituted the instant action in Philadelphia County on February 5, 1974. This suit was against the same defendants and for the same injuries upon which

[ 238 Pa. Super. Page 383]

    recovery was sought in the Delaware County action. Service of this complaint was effected on February 8, 1974.

On December 23, 1974, the defendants, pursuant to Rule 2253 of the Pennsylvania Rules of Civil Procedure, filed a petition for leave to join Dr. Dominic Salerno*fn2 as an additional defendant nunc pro tunc. By order of December 31, 1974, the lower court granted permission to join without prejudice to Dr. Salerno's right to timely object.

On April 17, 1975, Dr. Salerno filed preliminary objections to his proposed joinder. The lower court subsequently sustained Dr. Salerno's preliminary objections and dismissed ...


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