No. 991 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 77-24854.
Avrum Levicoff, Pittsburgh, for appellants.
Rudolph L. Milasich, Jr., Pittsburgh, for appellees.
Van der Voort, Spaeth and Watkins, JJ.
[ 271 Pa. Super. Page 350]
This is an appeal from an order denying a petition for an extension of time within which to join an additional defendant.*fn1
On October 25, 1977, Joseph B. Farmer filed a complaint alleging that in the course of his employment with the Mesta Machine Company, he had contracted silicosis from exposure to refractory products manufactured by the General Refractories Company and other named defendants. General Refractories was served with the complaint on October 28, 1977. Within sixty days, on December 27, 1977, General Refractories filed a complaint to join United Steelworkers of America, Local 1229, as an additional defendant. This was done in the belief that Farmer was a member of Local 1229. On February 15, 1978, Local 1229 filed an answer denying that Farmer was one of its members. On February 23, 1978, Farmer's deposition was taken and he said that he was a member of Local 7174 of the Steelworkers. On February 27,
[ 271 Pa. Super. Page 3511978]
, General Refractories filed a petition pursuant to Pa.R.Civ.P. 2253 seeking an extension of time within which to join Local 7174 as an additional defendant. The petition alleged the cause of the delay; it did not, however, contain any specifics as to the cause of action that General Refractories sought to assert against Local 7174, only saying in this regard that "7. The complaint to Join Additional Defendant is based upon Local Union's responsibility to its members." Record at 37a. No copy of the complaint sought to be filed against Local 7174 was attached to the petition. However, a copy of the complaint was attached to General Refractories' memorandum in support of the petition. In this manner the lower court was made aware of the nature of the cause of action that General Refractories sought to assert against Local 7174. On April 6, 1978, the lower court filed an order denying General Refractories' petition. General Refractories filed a petition for reconsideration of the order, which was granted, but on May 26, 1978, the lower court again filed an order denying General Refractories' petition.
The lower court denied General Refractories' petition on the ground that federal law preempted the cause of action that General Refractories sought to assert against Local 7174. On this appeal, General Refractories argues that the lower court applied the wrong legal standard in judging the petition, specifically, that the court should not have decided whether General Refractories wished to assert a valid cause of action against the Local, but only whether the delay in joinder was justified and whether joinder would prejudice Farmer's right to a speedy adjudication. Alternatively, General Refractories argues that the cause of action it wishes to assert against the Local was valid.
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 ...