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DOMINICK DILAURO v. ONE BALA AVENUE ASSOCIATES AND BALA REALTY ASSOCIATES (09/29/86)

filed: September 29, 1986.

DOMINICK DILAURO
v.
ONE BALA AVENUE ASSOCIATES AND BALA REALTY ASSOCIATES, INC., APPELLANTS



Appeal from the Order of the Court of Common Pleas, Civil Division, of Montgomery County at No. 84-15597.

COUNSEL

Lawrence S. Sarowitz, Philadelphia, for appellants.

Alan B. Epstein, Philadelphia, for appellee.

Wickersham, Wieand and Popovich, JJ. Wieand, J., files a concurring opinion.

Author: Popovich

[ 357 Pa. Super. Page 210]

This is an appeal from an order of the trial court which denied the motion of appellants-defendants, One Bala Avenue Associates and Bala Realty Advisors, Inc., the owner and manager of a commercial building, respectively, to join an additional defendant, nunc pro tunc. We must reverse and remand for proceedings consistent with this opinion.

The record reveals the following set of facts which were summarized by the trial court:

On February 16, 1982, appellee-plaintiff, Dominick DiLauro, attempted to enter the premises of his employer, Technical Aid Corporation (T.A.C.), located at One Bala Avenue, Bala Cynwyd, Pennsylvania. Appellee lost his footing while descending the stairs leading to his employer's offices, fell down the stairs and sustained "serious and totally disabling injuries."

On January 17, 1984, appellee filed a complaint in trespass and assumpsit against appellants. Appellee alleged that his injuries were the "direct result of the negligence of the [appellants-d]efendants in failing to design and maintain proper ingress and egress to the building and more specifically failing to provide properly placed handrails for use while descending the stairs."

[ 357 Pa. Super. Page 211]

Ten months later, appellants filed a motion to join the employer, Technical Aid Corporation, as an additional defendant pursuant to Pa.R.C.P. 2252. Technical Aid was the lessee of the premises and appellants asserted that the lease contract contained an indemnity clause which relieved them from all liability for "injury or damage to any person or property in or about the demised premises."

Appellants claimed that the indemnity clause constituted a proper case for joinder. Appellee stated that he would not be prejudiced by the late joinder.

After oral argument was held, the trial court dismissed appellants' joinder motion. This appeal followed.

Appellants argue that the trial court erred in denying their motion to join Technical Aid Corporation nunc pro tunc because there existed a valid indemnification agreement which predated the appellee's accident.*fn1

The following guidelines must be applied in determining the merits of appellants' argument:

Pa.R.Civ.P. 2253 requires that leave of court be sought, upon cause shown, to secure joinder of an additional defendant after the expiration of the sixty-day period. See Zakian v. Liljestrand, 438 Pa. 249, 255, 264 A.2d 638, 641 (1970). "Whether there is 'cause shown' for the allowance of an extension of time for the joinder of an additional defendant is a matter within the discretion of the lower court, and its decision will not be reversed absent an abuse of discretion." Kovalesky v. Esther Williams Swimming Pools, 345 Pa. Super. 95, 104, 497 A.2d 661, 665 (1985). Accord Zakian v. Liljestrand, supra, 438 Pa. at 255, 264 A.2d at 641; Farmer v. General Refractories Co., 271 Pa. Super. 349, 351, 413 A.2d 701, 702 (1979); Welch Foods Inc. v. Bishopric Products Co., 254 Pa. Super. 256, 258, 385 A.2d 1007, 1008 (1978).

[ 357 Pa. Super. Page 212]

    to Montgomery County; (2) a statement of the facts alleged to render the proposed additional defendant liable over to the defendant, i.e., an indemnification clause which would entitle appellants to indemnification from Technical Aid should any liability by the plaintiff be established at the time of trial; and (3) allegations that the late joinder will not be prejudicial to the proposed additional defendant, i.e., "said additional defendant will not be prejudiced since the within matter is in the preliminary discovery stages and said additional defendant would have a full opportunity to participate in the various avenues of discovery permitted under the Pennsylvania Rules of Civil Procedure." Motion of Appellants-Defendants to Join T.A.C., Allegation at No. 12.

In Pennsylvania, an injured employee or other third party cannot seek contribution or indemnity from the injured employee's employer in the absence of an express contractual undertaking. Gerard v. Penn Valley Constructors, Inc., 343 Pa. Super. 425, 430, 495 A.2d 210, 212 (1985). Section 481(b) of the Pennsylvania Workmen's Compensation Act, Act of June 2, 1915, P.L. 736, No. 338, as amended, by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. § 1 et seq.

Section 481(b) states:

(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.

[ 357 Pa. Super. Page 21577]

P.S. § 481(b).

The instant contractual undertaking provides for the following:

8 Lessor shall not be held responsible for and is hereby expressly relieved from any and all liability by reason of any injury, loss or damage to any person or property in or about the demised premises whether the same be due to fire, breakage, leakage, use, misuse or abuse of elevators, hatches, openings, defective construction, failure of water supply, light or power, electric wiring, plumbing, machinery, wind, lightning, storm, or any other cause whatsoever, which liability is expressly assumed by Lessee whether the loss, injury or damage be to the person or property of the Lessee or any other person.

"AGREEMENT".

Our Supreme Court's decision in Stokes is the leading case in this area. In Stokes, the plaintiffs, Jacqueline and Robert Stokes filed a complaint in trespass against the defendant-appellee, the Loyal Order of Moose # 696. The cause of action arose when Jacqueline Stokes was injured after a folding chair collapsed at appellee's premises.

The appellee filed a third party complaint to join an insurance agency, appellant, the General Accident Fire and Life Assurance, Ltd. and the James W. Doncaster Agency, ...


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