No. 616 April Term, 1977, Appeal from the Order entered February 28, 1977 of the Court of Common Pleas, Civil Division, of Erie County at No. 1627 A 1973.
John M. McLaughlin, Erie, with him John G. Gent, Erie, for defendant-appellant.
Robert N. Spaeder and T. Warren Jones, Erie, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 254 Pa. Super. Page 257]
This is an appeal from an order of the Court of Common Pleas of Erie County, Civil Division, refusing to permit the joinder of PPG Industries, Inc., as an additional defendant pursuant to Rule 2253 of the Pennsylvania Rules of Civil Procedure. Finding no abuse of discretion, we affirm.
The events giving rise to this appeal are as follows. On June 23, 1971, defendant-appellant, Bishopric Products Company, was engaged in relining fruit juice storage tanks located on the premises of plaintiff Welch Foods, Inc. This process entails heating the interior of the tanks*fn1 to approximately
[ 254 Pa. Super. Page 258500]
degrees to 550 degrees Fahrenheit. While work was progressing on a tank located in Building No. 10, a fire started and destroyed the building and caused substantial damage to adjacent buildings and equipment.
On June 15, 1973, plaintiff filed suit in trespass and assumpsit. Thereafter, numerous pleadings and motions were filed while both parties engaged in extensive discovery. Plaintiff, believing discovery had been completed, filed its pre-trial narrative statement on August 29, 1975, and placed the case on the trial list. Discovery procedures continued, however, and in early August of 1976 plaintiff provided defendant with an expert opinion report relative to the cause of the fire.*fn2 Upon examining the report defendant concluded that plaintiff was not proceeding on a new theory of causation which suggested that the proposed additional defendant was liable for the fire. Accordingly, on September 16, 1976, defendant moved to join PPG as an additional defendant and joinder was subsequently effected by complaint filed on September 28, 1976. On October 25, 1976, PPG filed preliminary objections to the complaint against it contending the joinder was untimely. PPG's objections were sustained by the lower court on February 28, 1977, and this appeal ensued.
Rule 2253, Pa.R.C.P. 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 supplied.]
In the case at issue, defendant's request for permission to join PPG as an additional defendant was not made until more than three years after the expiration of the 60-day period ...