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NPW MEDICAL CENTER N.E. PENNA. v. LS DESIGN GROUP (05/30/86)

filed: May 30, 1986.

NPW MEDICAL CENTER OF N.E. PENNA., INC.
v.
LS DESIGN GROUP, P.C., THE BALLINGER COMPANY, CORBIT'S, INC., LEWIS REUTER, IV, TURNER CONSTRUCTION COMPANY AND SORDONI CONSTRUCTION COMPANY, T/A THE JOINT VENTURE OF TURNER CONSTRUCTION COMPANY AND SORDONI CONSTRUCTION COMPANY V. PENNSYLVANIA GAS AND WATER CO., AMERICAN CASUALTY CO. OF READING AND REPUBLIC STEEL CO. APPEAL OF TURNER CONSTRUCTION COMPANY AND SORDONI CONSTRUCTION COMPANY T/A THE JOINT VENTURE OF TURNER CONSTRUCTION CO. AND SORDONI CONSTRUCTION CO.



Appeal from the Order entered March 12, 1985 in the Court of Common Pleas of Philadelphia County, Civil, at No. 877 July Term, 1983

COUNSEL

Mark L. Parisi, Philadelphia, for appellants.

Thomas Martin, Philadelphia, for appellee.

Rowley, Montemuro and Kelly, JJ.

Author: Montemuro

[ 353 Pa. Super. Page 343]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of a proposed additional defendant to the complaint filed against it.

On March 2, 1984, plaintiff, NPW Medical Center of N.E. Penna., Inc., (hereinafter "NPW") filed a complaint against several defendants, including appellant, The Joint Venture of Turner Construction Co. and Sordoni Construction Co.*fn1 (hereinafter "Turner/Sordoni"). The complaint alleged faulty workmanship in the defendants' design and installation of a water system at NPW which resulted in premature corrosion of the pipes. Service of the complaint was effected on Turner/Sordoni on March 5, 1984. Its answer was filed on August 14, 1984.

On November 20, 1984, the parties of record as of that date entered into a stipulation allowing Turner/Sordoni to file a complaint against an additional defendant, Pennsylvania Gas and Water Co. (hereinafter PG & W), appellee

[ 353 Pa. Super. Page 344]

    herein. The stipulation was approved by the trial court on November 21, 1984. On the same day, appellant filed its complaint against PG & W alleging that the water which PG & W had supplied to NPW was corrosive and incompatible with the pipes which Turner/Sordoni had installed. The complaint, based on theories of negligence, products liability, and breach of warranty, sought to hold PG & W either solely liable to NPW or liable to Turner/Sordoni for contribution and/or indemnity.

PG & W filed preliminary objections to Turner/Sordoni's complaint on the basis, inter alia, that its joinder was untimely under Pa.R.C.P. 2253.*fn2 On March 12, 1985, the trial court, agreeing that the attempted joinder was untimely, entered an order sustaining PG & W's preliminary objections and dismissing the complaint against it. Turner/Sordoni brought the instant appeal, raising a single question for our review: Did the trial court err in dismissing appellant's complaint against PG & W on the basis of noncompliance with Pa.R.C.P. 2253? The rule reads as follows:

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. (Emphasis added).

The attempted joinder in the instant case was made more than six months beyond the sixty ...


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