Appeal from the order of the Court of Common Pleas of Montgomery County in the case of Joseph Spicer, Jr. and Joseph Spicer, Sr. and Patricia Anne Spicer v. Western Montgomery County Vocational and Technical School, No. 85-08826.
Joanne Steinke Faul, with her, James W. Hennessey, Sherr & Zuckerman, P.C., for appellant.
Margaret E. Harvey, Thompson and Pennell, for appellee, Dynamics Corporation of America.
Judges Doyle and Colins, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Doyle. Judge Colins dissents.
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Before us for consideration is an appeal by Defendant/Appellant Western Montgomery County Vocational
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and Technical School (Vo-Tech) from an order of the Court of Common Pleas of Montgomery County sustaining the preliminary objections of Additional Defendant Dynamics Corporation of America (Dynamics) which contested Dynamics' joinder to the suit by Plaintiff Joseph Spicer, Jr., then a minor, and his parents (the Spicers). We affirm.
On June 3, 1985 the Spicers filed suit against Vo-Tech alleging personal injuries to the minor plaintiff which he sustained on October 23, 1984 when his pant leg and leg were caught in the chain mechanism of a grain elevator he was operating at school. The Spicers alleged that Vo-Tech was negligent, careless and reckless in failing to properly maintain the grain elevator and its component parts, in maintaining the grain elevator in an unsafe condition, in failing to warn of dangers in the use of the machinery and in failing to provide adequate safety devices. The parties engaged in discovery and on September 2, 1986, the Spicers sent Vo-Tech a report by Thomas A. Oravecz, P.E., indicating that the minor plaintiff's injuries resulted from the defective design and manufacture of the elevator and not from the alleged negligent maintenance of the machine. Thereafter, the Spicers agreed to Vo-Tech's request to join Dynamics, the manufacturer of the grain elevator, by stipulation on September 30, 1986. The stipulation was approved by the common pleas court on October 3, 1986, sixteen months after the Spicers filed their complaint against Vo-Tech. The Defendant's complaint was served on Dynamics on July 6, 1987.*fn1 Dynamics then filed preliminary objections to Vo-Tech's complaint alleging that Vo-Tech failed to show cause for the delay pursuant to Pa. R.C.P No. 2253 (Rule
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). By order of February 29, 1988, the common pleas court sustained Dynamics' preliminary objections and dismissed it from the suit. This appeal by Vo-Tech ensued.
The issue presented is whether the lower court abused its discretion in sustaining Dynamics' preliminary objections regarding its late joinder. Rule 2253 provides:
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 ...