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WILLIAM GLABBATZ AND DEBORAH GLABBATZ v. TERMINAL FREIGHT HANDLING CO. A/K/A TERMINAL FREIGHT COOPERATIVE ASSOCIATION AND V.S.P. PERSONAL TOUCH (08/17/89)

filed: August 17, 1989.

WILLIAM GLABBATZ AND DEBORAH GLABBATZ, H/W,
v.
TERMINAL FREIGHT HANDLING CO. A/K/A TERMINAL FREIGHT COOPERATIVE ASSOCIATION AND V.S.P. PERSONAL TOUCH, INC. APPEAL OF TERMINAL FREIGHT HANDLING CO. A/K/A TERMINAL FREIGHT COOPERATIVE ASSOCIATION



Appeal from the Order entered June 27, 1988 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 4147 September Term 1987

COUNSEL

Louis S. Croce, King of Prussia, for appellant.

Robert Keller, Philadelphia, for V.S.P. Personal Touch, Inc., appellee.

Kelly, Johnson and Melinson, JJ.

Author: Kelly

[ 386 Pa. Super. Page 449]

In this case we are called upon to determine whether a trial court abused its discretion in denying allowance to file a late joinder complaint against an additional defendant under Pa.R.C.P. 2253, when the "cause" for untimely joinder was alleged to be the original defendant's ongoing but unsuccessful attempt to reach a settlement with the plaintiff. We find no abuse of discretion, and accordingly affirm the order granting the additional defendant's preliminary objections and dismissing the original defendant's untimely joinder complaint against the additional defendant.

The relevant facts and procedural history may be briefly summarized as follows. William Glabbatz -- plaintiff (appellee), was injured when he slipped and fell on property owned by Terminal Freight Co. -- original defendant (appellant). Appellant had a contract with V.S.P. Personal Touch, Inc. -- additional defendant (appellee), wherein appellee-V.S.P.

[ 386 Pa. Super. Page 450]

    would perform maintenance and janitorial services for appellant on their property. On October 10, 1987, appellee-Glabbatz served notice of his complaint in negligence upon appellant. On March 28, 1988, appellant answered the complaint, and the following day filed its joinder complaint against appellee-V.S.P. Thereafter, appellee-V.S.P. filed its preliminary objections which were granted, and appellant's complaint was dismissed with prejudice. This timely appeal followed. We note that it is well established that an order granting preliminary objections and dismissing defendant's complaint as to an additional defendant is final and appealable. Signal Consumer Discount Co. v. Babuscio, 257 Pa. Super. 101, 390 A.2d 266 (1978).

Appellant raises the following four contentions on appeal:

I. The Joinder should have been permitted.

II. The Joinder, having been stricken, appellant should have not been precluded from filing a Motion for Permission to file a later Joinder.

III. There was no prejudice arising from the late Joinder.

IV. The Lower Court's Order should not be construed as precluding any later, separate suit between Terminal Freight Handling Company and V.S.P. Personal Touch, Inc. ...


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