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ROBERT & ELIZABETH YATES v. PACOR (04/25/86)

filed: April 25, 1986.

ROBERT & ELIZABETH YATES, APPELLANTS,
v.
PACOR, INC., EAGLE-PICHER INDUSTRIES, J.P. STEVENS CO., GAF CORPORATION, KEENE CORP., RAYMARK INDUSTRIES, INC., CELOTEX CORPORATION, SOUTHERN TEXTILE COMPANY, H.K. PORTER COMPANY, FORTY-EIGHT INSULATIONS, INC., GARLOCK, INC., OWENS-ILLINOIS GLASS COMPANY, FIBERBOARD CORPORATION, OWENS-CORNING FIBERGLASS CORPORATION, PITTSBURGH CORNING CORPORATION, NICOLET INDUSTRIES, INC., ARMSTRONG WORLD INDUSTRIES, INC., NOSROC (FORMERLY G. & W.H. CORSON), U.S. GYPSUM FLINTKOTE, NATIONAL GYPSUM, STAR INDUSTRIAL, COONEY BROTHERS, BARKER PIPE FITTINGS, PA WELDING SUPPLY, ESCO ELECTRICAL SUPPLY, RUMSEY ELECTRIC COMPANY, HERMAN GOLDNER, KENT TILE, C.E. MCCORMICK ESSEX CHEMICAL CORPORATION, BONDEX INTERNATIONAL, INC., M. BUTEN & SONS, M.A. BRUDER & SONS, MURALO COMPANY, INC., I.P.A. SYSTEMS, INC., CAREY CANADIAN



Appeal from the Order in the Court of Common Pleas of Philadelphia County, Civil Division, No. June Term 1983 No. 310 (2292)

COUNSEL

Daniel G. Childs, Philadelphia, for appellants.

Olszewski, Tamilia and Kelly, JJ.

Author: Tamilia

[ 352 Pa. Super. Page 337]

On June 7, 1983, plaintiff/appellant instituted the instant action by filing a complaint in assumpsit, trespass and admiralty against various manufacturers and suppliers of asbestos products. Appellant alleges he suffers from injuries caused in part by his inhalation of asbestos.

On January 16, 1985, after the original defendants had been served, appellant filed his third reinstated complaint naming, inter alia, appellee, M. Buten and Sons, as an additional defendant. On April 15, 1985, M. Buten and Sons filed preliminary objections to appellant's reinstated complaint, specifically objecting to appellant's use of Pa.R.C.P. 1010(b)*fn1 to effectuate joinder.

The lower court granted M. Buten and Sons' preliminary objections and dismissed appellant's reinstated complaint as against this defendant. The court, relying on its prior decision in London v. Pennsylvania Brake Bonding Company, No. 8305-6849 (2268) (C.C.P. March 6, 1985) (C.C.C. May 29, 1985) (Opinion on reconsideration), held that after service of a party defendant, a plaintiff may only effectuate joinder by means other than Pa.R.C.P. 1010(b). The appropriate means of joinder in the case sub judice was determined to be pursuant to Pa.R.C.P. 2232(c); requiring appellant to petition the court for allowance to join defendant, M. Buten and Sons. Additionally, the court conceded it had previously allowed joinder pursuant to Rule 1010(b) regardless of prior service upon any original defendants;*fn2 thus acknowledging its new finding constituted a reversal.

Appellant now contends the lower court erred in dismissing his reinstated complaint which added an additional defendant under Pa.R.C.P. 1010(b) after other defendants had been served. Appellant urges that a plain reading of Rule

[ 352 Pa. Super. Page 3381010]

(b) permits addition of defendants at the time of reinstatement of the complaint or reissuance of the writ regardless of whether process has been previously served on any of the named original defendants. Pa.R.C.P. 1010(b) provides that:

(b) A writ may be reissued or a complaint reinstated at any time and any number of times. A new party defendant may be named in a reissued writ or a reinstated complaint. (emphasis added)

Appellant would have us interpret this to mean that at any phase of an action, a new party defendant may be added merely by reissuing a writ or reinstating a complaint and naming the new party therein. We find it significant that Pa.R.C.P. 401, which replaces former Rule 1010, has added new language apparently ...


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