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RICHARD F. KOVALESKY v. ESTHER WILLIAMS SWIMMING POOLS (07/05/85)

decided: July 5, 1985.

RICHARD F. KOVALESKY
v.
ESTHER WILLIAMS SWIMMING POOLS, C/O P & M DISTRIBUTORS AND ALUMINUM SHAPES, INC. AND DONALD A. CERENE AND LAWRENCE BECKER AND ROBERT LAUGHLIN. APPEAL OF ALUMINUM SHAPES, INC. AND ESTHER WILLIAMS SWIMMING POOLS. ROBERT P. KOVALESKY V. ESTHER WILLIAMS SWIMMING POOLS, C/O P & M DISTRIBUTORS AND ALUMINUM SHAPES, INC. AND DONALD A. CERENE AND LAWRENCE BECKER, AND ROBERT LAUGHLIN. APPEAL OF DONALD A. CERENE AND LAWRENCE BECKER



No. 02855 PHL 84, Appeal from the Order entered October 12, 1984 in the Court of Common Pleas of Schuylkill County, Civil Division, at No. S-110-1984. Appeal from the Order entered October 12, 1984 in the Court of Common Pleas of Schuylkill County, Civil Division, at No. S-110-84.

COUNSEL

Pamela B. Gagne, Philadelphia, for appellant (at 2855), for appellee, (at 2868).

Joseph H. Jones, Pottsville, for appellee, Laughlin.

John W. Ashley, Allentown, for appellant (at 2868).

Cavanaugh, Olszewski and Hoffman, JJ. Cavanaugh, J., files a dissenting opinion.

Author: Hoffman

[ 345 Pa. Super. Page 98]

These appeals are from the lower court's October 12, 1984 order (1) refusing and dismissing the motion of defendants, Donald A. Cerene and Lawrence Becker (Cerene and Becker), for leave to join an additional defendant nunc pro tunc; and (2) refusing and dismissing the motion of defendants, Esther Williams Swimming Pools, c/o P & M Distributors (Esther Williams), and Aluminum Shapes, Inc. (Aluminum Shapes), for leave to join an additional defendant nunc pro tunc.*fn1 For the reasons stated herein, we affirm.

On June 27, 1982, plaintiff Richard P. Kovalesky (Kovalesky) fell into a swimming pool on premises jointly owned by defendants, Cerene and Becker, and, as a result of injuries suffered in the fall, became a quadraplegic. Consequently, on July 21, 1983, in the Philadelphia Court of Common Pleas, Kovalesky filed a complaint in trespass and assumpsit against Cerene, Becker, Esther Williams, and Aluminum Shapes, alleging negligence and breach of warranties. On August 24, 1983, Cerene and Becker filed preliminary objections to the complaint in the nature of a motion for transfer of venue. On September 13, 1983, Esther Williams and Aluminum Shapes also filed preliminary objections in the nature of a motion for transfer of venue. On November 23, 1983, Cerene and Becker filed a praecipe for writ to join

[ 345 Pa. Super. Page 99]

Robert Laughlin (Laughlin) as an additional defendant.*fn2 It is undisputed that this praecipe for writ was never served upon Laughlin. On November 29, 1983, the Philadelphia Court of Common Pleas, per Judge White, upon consideration of the preliminary objections of all defendants, ordered the matter transferred to the Schuylkill County Court of Common Pleas. Pursuant to this order, the records were transferred to Schuylkill County on February 7, 1984.

On February 21, 1984, in the Schuylkill Court of Common Pleas, Esther Williams and Aluminum Shapes filed their answer and new matter to plaintiff's complaint. The new matter included a cross-claim against Laughlin as an additional defendant. On February 27, Cerene and Becker filed (1) a reply to the new matter raised by Esther Williams and Aluminum Shapes; (2) an answer, new matter and cross-claim (against Esther Williams and Aluminum Shapes) to plaintiff's complaint; and (3) a complaint against Laughlin as an additional defendant. On March 7, 1984, Esther Williams and Aluminum Shapes filed an answer to Cerene and Becker's cross-claim. Then, on March 19, Laughlin filed preliminary objections in the nature of a motion to strike (1) the November 23, 1983 praecipe for writ to join him as an additional defendant filed by Cerene and Becker, (2) the February 21, 1984 cross-claim filed by Esther Williams and Aluminum Shapes, and (3) the February 27, 1984 complaint joining him as an additional defendant filed by Cerene and Becker. In the motion to strike, Laughlin alleged that the praecipe had been untimely filed in violation of Pa.R.Civ.P. 2253.

Subsequently, on March 28, 1984, Esther Williams and Aluminum Shapes filed a motion for leave to join Laughlin as an additional defendant nunc pro tunc. On April 25, Cerene and Becker also filed a motion for leave to join Laughlin as an additional defendant nunc pro tunc.

[ 345 Pa. Super. Page 100]

Pursuant to a June 29, 1984 order, filed July 2, the lower court, per Judge Dolbin, sustained Laughlin's preliminary objections in the nature of a motion to strike. No appeal was taken from this order.

On October 12, 1984, the lower court, per Judge Lavelle, entered an opinion and order refusing and dismissing both motions for leave to join an additional defendant nunc pro tunc. Subsequently, Esther Williams and Aluminum Shapes filed their appeal on October 24, 1984; Cerene and Becker filed their appeal on October 26.*fn3 On October 31, Cerene and Becker filed a statement of matters complained of on the appeal pursuant to Pa.R.A.P. 1925(b), which Laughlin answered on November 2, 1984. On November 8, Esther Williams and Aluminum Shapes filed their 1925(b) statement.

Rule 2252 of the Pennsylvania Rules of Civil Procedure provides that:

(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based.

(b) If the person sought to be joined is not a party to the action the joining party may file as of course a praecipe for a writ or a complaint. If the joinder is by writ the joining party shall file his complaint within twenty (20) days from the filing of the praecipe for the writ. The complaint, in the manner ...


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