No. 1514 October Term, 1978, No. 567 October Term, 1979, Appeal from Orders dated April 18, 1978 (at No. 1514 October Term, 1978) and February 23, 1979 (at No. 567 October Term, 1979) of the Court of Common Pleas of Philadelphia County, Civil Trial Division, at No. 5321 December Term, 1973.
Before Hester, J., Montgomery, J., and Cirillo, J.*fn*
The Orders of the lower court are affirmed on the Opinions of Blake, J. (Appeal of Richard Wolf GmbH) and Takiff, J. (Appeal of WISAP GmbH).
IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CIVIL TRIAL DIVISION
BLANCHE HALL V. PENNSYLVANIA HOSPITAL and STEPHEN L. CORSON, M.D., RONALD L. BOLOGNESE, M.D., RICHARD WOLF MEDICAL INSTRUMENTS CORP., WISAP GmbH and RICHARD WOLF GmbH
This matter is before the Motion Court upon the Preliminary Objections of Additional Defendant, RICHARD WOLF, GmbH(hereinafter "Wolf GmbH"). The gravamen of these Preliminary Objections is a Motion to Strike the Complaint against Wolf GmbH for lack of timely joinder pursuant to Pa.R.C.P. 2253; and a Petition to Dismiss the Complaint for lack of jurisdiction, service having been made on Wolf GmbH under the provisions of 42 PS 8307 (The Pennsylvania Long Arm Statute).
The pertinent facts are as follows:
Plaintiff's cause of action arose out of injuries allegedly sustained on 2/12/73 as a result of a surgical misadventure during surgery by defendant doctors at defendant hospital while using a hysteroscopic insufflator, manufactured in Germany by WISAP GmbH and Wolf GmbH, additional defendants. The hysteroscopic insufflator in question was shipped to Illinois by Wolf GmbH to its agent Richard Wolf Medical Instruments Corporation (hereinafter Wolf Instruments) on or about April 21, 1972.
Plaintiff commenced suit against defendant hospital by Complaint on 1/2/74 and service was made on 1/4/74. The defendant doctors were joined by Writ on 2/14/74 and they joined Wolf Instruments by Writ on 2/13/75. Wolf Instruments filed a Petition for Leave to Join as Additional Defendant Wolf GmbH on 8/11/75. Subsequently, by order of Court, per Hirsh, J., dated September 9, 1975, leave to file a complaint against Wolf GmbH was granted and Wolf Instruments filed its additional defendant Complaint against Wolf GmbH on 10/24/75. Wolf GmbH filed Preliminary Objections to the Complaint on 11/28/75. Injury to counsel for Wolf Instruments caused the removal of said Preliminary Objections from the Argument List until the instant Motions were refiled.
"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."
It is clear that pursuant to Rule 2253, any defendant or additional defendant must join an additional defendant within sixty (60) days of service of the complaint upon the original defendant. Thereafter, no additional defendant may be joined without first obtaining leave of court.
In the instant case the original defendant was served on 1/4/74 and Wolf GmbH, the moving party, was joined by complaint, with leave of court, on 10/24/75, approximately nineteen (19) months after the period of time for joinder under Rule 2253 expired. The Motion presently before the court contests the sufficiency of the reasons advanced by Wolf Instruments in its Petition to Join Wolf GmbH, filed 8/11/75.
Wolf GmbH contends that Wolf Instruments has had knowledge from the commencements of its involvement in this action of the existence of a claim against Wolf GmbH and that Wolf Instruments has failed to adequately explain the delay for more than six months in filing a complaint against Wolf GmbH or advance any reasoning as to the sufficiency of causes for extension of time.
Wolf Instruments responds that a Complaint was not served against it until 4/22/75 and that Wolf Instruments was not aware of the nature of the claims against it until served by Complaint. Wolf Instruments asserts that the only delay chargeable to it is the delay from 4/22/75, the date of service upon Wolf Instruments, to 8/11/75, the date Wolf Instruments filed and served notice to all counsel of its Petition for Leave to Join Wolf GmbH as an Additional Defendant.
Upon review, taking cognizance of the complexity of this case as evidenced by the numerous pleadings and docket entries, and the attenuating factual and legal issues involving several West German Corporations, we cannot find any undue delay. The court, per Hirsh, J., properly granted leave to join upon cause shown.It is clear that the purpose and policy of Rule 2253 is "an attempt to provide a means to simplify and expedite the disposition of matters involving numerous parties without subjecting the original plaintiff to unreasonable delay in the prosecution of his portion of the litigation." Zakian v. Liljestrand, 438 Pa. 249 (1970). In addition, delay is not in and of itself a reason for denial of a late joinder. (Zakian, supra, p. 256).
Here, no reasonable averment of prejudice has been advanced by Wolf GmbH that has resulted from the late joinder. Indeed, it is apparent that both Wolf Instruments and Wolf GmbH, through counsel, were involved in pre-joinder discussions and were therefore aware of the potential of being joined as additional defendants--thus, negating any claim of prejudice to the preparation of their respective cases.
In Lamoree v. Penn Central Transportation Company, 238 Pa. Superior Ct. 380 (1976), leave to join an additional defendant was granted over eight (8) months after the expiration of the sixty (60) day period provided for in Rule 2253. The same complicated legal and factual issues that were present in Lamoree and the facts in the instant case require a finding of good cause shown as to the delay in joining the additional defendant. Accordingly, the Preliminary Objections in the nature of a Motion to Strike the Complaint filed on behalf of Richard Wolf GmH are dismissed.
In addition, Richard Wolf GmbH has raised a question of jurisdiction and has attached an affidavit of Herbert Schubert, the Chief Operating Officer of Richard Wolf GmbH, as to the manufacture of the hysteroscopic insufflator in question and as to the business contacts Wolf GmbH in Pennsylvania. Wolf GmbH denies having designed or manufactured the insufflator in question and avers that it has never done business in Pennsylvania.
Wolf Instruments avers through attached exhibits (Answers to Interrogatories) that Richard Wolf Instruments Corporation is one hundred percent owned by Richard Wolf GmbH, and that Herbert Schubert is an officer of Richard Wolf Medical Instruments Corporation. Answers to interrogatories indicate that Richard Wolf Medical Corporation marketed $281,950.00 of Wolf GmbH products in Pennsylvania during the years 1972 through 1975; that since 1973, Wolf GmbH has made all of its sales in the United States through Wolf Instruments; and that the ...