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EXTON DEVELOPMENT v. SUN OIL COMPANY PENNSYLVANIA (05/04/87)

filed: May 4, 1987.

EXTON DEVELOPMENT
v.
SUN OIL COMPANY OF PENNSYLVANIA, SUN COMPANY, INC. AND SUN REFINING AND MARKETING COMPANY AND HUNTER ENVIRONMENTAL SERVICES, INC. AND TELEPHONE ANSWERING SERVICE OF WILLOWGROVE, INC. AND THOMAS CULLEN. APPEAL OF HUNTER ENVIRONMENTAL SERVICES, INC., APPELLANT



Appeal from the Order Entered May 2, 1986, In the Court of Common Pleas of Chester County, Civil Division No. 85-02652.

COUNSEL

William T. Wilson, Pittsburgh, for appellant.

Michael J. Plevyak, West Chester, for Telephone, appellee.

Edward J. Tuite, Wayne, for Cullen, appellee.

Cirillo, President Judge, and Tamilia, Cercone, JJ.

Author: Cercone

[ 363 Pa. Super. Page 19]

This is an appeal from an order sustaining appellees' preliminary objections and dismissing appellees as additional defendants. Appellees challenged their joinder on the grounds that appellant failed to comply with the time requirements for joinder of additional defendants set forth in Pa.R.C.P. 2253.

Plaintiff, Exton Development, commenced this action against original defendants, Sun Oil Company of Pennsylvania, Sun Company, Inc. and Sun Refining and Marketing Company (Sun Oil), seeking to recover damages for the alleged contamination of plaintiff's water supply as a result of a gasoline leak. Sun Oil was served with the complaint on June 4, 1985. On August 5, 1985, Sun Oil filed a praecipe for a writ of summons to join additional defendant Hunter Environmental Services, Inc., the appellant in this case. On August 16, 1985, a complaint was filed alleging that the leak had been caused by faulty maintenance performed by appellant. Appellant was served with this complaint on August 27, 1985. On December 5, 1985, appellant filed a Petition for Extension of Time to join as additional defendants, Telephone Answering Service of Willow Grove, Inc. and Thomas Cullen, the appellees in this case. In the absence of a response to the petition, it was granted and appellant filed its complaint on January 16, 1986, alleging that appellees failed to heed appellant's warning of a leaking pump and failed to take appropriate action after learning of the defective condition. Both appellees proceeded to

[ 363 Pa. Super. Page 20]

    file preliminary objections based on late joinder. The Honorable John E. Stively, Jr. sustained the preliminary objections thereby dismissing appellees as additional defendants. This appeal followed.

Rule 2253 of the Pennsylvania Rules of Civil Procedure sets forth the time limitation for joinder of an additional defendant as follows:

Rule 2253. Time for Filing Praecipe or Complaint

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 ...


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