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KARLA MARMARA v. JAMES RAWLE (03/16/79)

decided: March 16, 1979.

KARLA MARMARA, A MINOR, BY EDWIN MARMARA, HER GUARDIAN AND NEXT OF KIN, AND EDWIN MARMARA, IN HIS OWN RIGHT, APPELLANTS,
v.
JAMES RAWLE, JR. AND JEANETTE RAWLE, HIS WIFE, DR. MARIO CIRELLI, THE POLICE, FIREMAN & PARK POLICE MEDICAL ASSOCIATION, INC., AND HUNTER CONSTRUCTION COMPANY, ADDITIONAL DEFENDANT. APPEAL OF JAMES RAWLE, JR., ET UX.



No. 1655 October Term, 1977, No. 1633 October Term, 1977, Appeals from the Order of the Court of Common Pleas of Philadelphia County at No. 5133, July Term, 1972.

COUNSEL

Joel Paul Fishbein, Philadelphia, for Rawle, appellants at No. 1633 and appellees at No. 1655.

Edward J. Ross, Philadelphia, for Marmara, appellants at No. 1655 and appellees at No. 1633.

Alfonso Tumini, Philadelphia, for appellees Cirelli, The Police, Fireman & Park Police Medical Ass'n, Inc.

Rudolph J. DiMassa, Philadelphia, for appellee Hunter Const. Co.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 264 Pa. Super. Page 232]

This case involves two appeals, each of which raises questions with respect to separate sections of the same order of the court below. Appeal No. 1655, brought by Karla Marmara and her guardian Edwin Marmara, challenges the propriety of an order entered by the lower court on April 27, 1977, which granted a petition to open filed by Dr. Mario Cirelli and the Police Fireman and Park Police Medical Association, Inc., (Medical Association).*fn1 Appeal No. 1633, brought by James Rawle, Jr., and his wife, Jeanette, challenges the propriety of a different section of the same order which granted appellee Hunter Construction Company's (Hunter's) petition for reconsideration, sustained Hunter's preliminary objections, and dismissed the Rawles' complaint against Hunter. We affirm the lower court's order.

On August 2, 1972, the Marmaras filed a complaint in trespass against the Rawles, Dr. Cirelli and the Medical Association. The complaint requested damages for injuries received by minor Karla Marmara on August 8, 1970, when a glass door shattered after being contacted by her. The accident occurred in the home of James and Jeanette Rawle during a period when the house was in darkness, allegedly because of an overloading of the electrical circuits. The complaint alleged that the Rawles were negligent in permitting an overloading of electrical circuits, and in maintaining in their home a glass door that was not tempered. The complaint also alleged that Dr. Cirelli, a member of the Medical Association at the time, was negligent in his treatment of Karla Marmara's injuries.

Counsel for the Marmaras and the Rawles entered into a stipulation on March 19, 1973. This stipulation, which was approved by the court below, granted the Rawles an extension of thirty days in which to join additional defendants. Pursuant thereto, the Rawles filed a complaint against Doric Manufacturing Company (Doric) -- the company which allegedly manufactured and distributed the "defective" glass

[ 264 Pa. Super. Page 233]

    door; Valley Bow Distributors (Valley Bow) -- an intermediate seller of the door; and Hunter -- the company which sold the door to the Rawles and installed it in their home.

Doric and Valley Bow filed preliminary objections in July of 1973, alleging that their joinder occurred substantially after the sixty-day requirement of Pa.R.C.P. 2253,*fn2 and that they had been prejudiced by their inability to participate in discovery proceedings. Both sets of preliminary objections were sustained by orders of the lower court, per Judge Harry A. Takiff, and ...


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