McDevitt v. Avis Rent-A-Car Systems, Inc.

Dissenting Opinion by

Mr. Justice Pomeroy :

As it has since the original rule was adopted by this Court on February 14, 1939, Rule 2253 of the Pennsylvania Rules of Civil Procedure forbids the joinder of an additional defendant later than sixty days after service upon the original defendant of the initial pleading of the plaintiffs, unless the Court “upon cause shown” allows a longer time.**

*55The purpose of Rule 2253, as I read it in context with the other rules pertaining to joinder of parties, is to prevent an undue delay in the trial or disposition of the suit by procrastination of an original defendant or by successive joinder of additional defendants. Koppel v. Engel, 52 Luz. Leg. Reg. 130 (1962); Brown v. Huber, 35 Del. Co. Rep. 485 (1948).

Additional defendants are only incidental beneficiaries of the sixty-day limitation. So long as a proposed joinder is attempted before expiration of the applicable statute of limitations, I see no reason to afford an additional defendant standing to relitigate by means of preliminary objections or otherwise the question of whether adequate cause was shown by the additional defendant for an extension. See Duffy v. Nat. Janitorial Services, 86 Montg. Co. L. R. 217 (1965). There should be no more need for special solicitude for any prospective additional defendant than for any prospective original defendant if the finding of cause for extension is the result of careful consideration at the time of entering the original order.

A petition for an extension should, of course, assert with definiteness why joinder cannot or could not be effected within the sixty-day period, and good practice would dictate that notice of intention to present the petition be given to other parties of record. See, e.g., Patrick v. South Pittsburgh Water Co., 100 P. L. J. 169, 80 Pa. D. & C. 253 (1952) ; Lambert v. Webb Mfg. Co., 77 Pa. D. & C. 363 (1951); 4A Anderson Pennsylvania Civil Practice §2253.12; 3 Goodrich-Amram Standard Pennsylvania Practice §2253-5. The Court should then consider the request and make a determination whether or not cause for extension of time has been shown. In my view, this should be an unequivocal *56order. To make it “without prejudice” to the rights of the prospective third party is to invite the additional defendant to attempt to show prejudice, and thus incur additional delay. To be called upon to defend any lawsuit is in a sense prejudicial, especially if the defendant believes he is unjustifiably sued. The case at hand is an example of the delay that can result from the procedure the Court now sanctions: almost five months were taken to determine that there was in fact no justification for the late joinder. In the meantime, the statute of limitations as to claims against the additional defendants expired, and no direct suits can be brought.

Notwithstanding the long lapse of time in the present case between the filing of the original complaint and the joinder of the additional defendants, the plaintiff stated he had no objection to the extension and his interest in expeditious handling of the case was thus protected. The Court also gave its approval. I thus conclude that the extension of time was proper and the joinder of the appellants also proper.

Accordingly, I respectfully dissent from the affirmance of the reversal of the original allowance of extension.

This Court has considered the cause requirement in Zakian v. Liljestrand, 438 Pa. 249, 264 A. 2d 638 (1970), Coppage v. Smith, *55381 Pa. 400, 113 A. 2d 247 (1955), and in Marnell v. Cross, 372 Pa. 82, 92 A. 2d 688 (1952).