Moore v. Clabell-Hickory

CIRILLO, Judge,

dissenting:

I respectfully dissent.

The majority holds that the lower court erred in failing to grant the plaintiffs’ Motion to Strike the defendants’ Answer. In its Opinion, the majority found that had the defendants responded timely to the complaint, the plaintiffs would have had time to join other defendants who might be liable in this suit. However, under the Pennsylvania Rules of Civil Procedure, the time within which pleadings may be filed can be extended.

Rules relating to the manner of commencing an action or the time for serving process or for filing or serving pleadings may be waived by agreement of the parties. The court on cause shown may extend or shorten the time within which pleadings shall be filed or process served.

Pa.R.C.P. No. 1003.

This provision is designed to enable the courts to supervise the conduct of litigation and to prevent unfair prejudice to both sides. That purpose was indeed served in this case.

*160The preliminary objections were briefed and, after argument, the lower court determined that the answer should stand. The Honorable D. Richard Eckman, in his Order of January 18, 1979, stated, “We are of the opinion that the equities in the present case favor the defendants.” I am compelled to agree with Judge Eckman.

If the plaintiff has been prejudiced by the late answer, because of the running of the statute of limitations, the fault lay as much, or even more, with the plaintiffs than with the defendants. The plaintiffs had control of their cause of action for almost two years and had every opportunity to investigate all of the facts, including the identity of potential defendants.

The consequences of the plaintiffs’ failure to sue the right parties was the direct result of their own actions. Therefore, I would hold that the court did not abuse its discretion when it permitted the defendants more than twenty days to file an answer. Compare: Turner v. Hebner, 276 Pa.Super. 341, 419 A.2d 488 (1980).

Additionally, the lower court properly determined that the plaintiffs could not amend their complaint to rectify their error in suing the wrong defendants. The plaintiffs sought to add new and distinct parties to the litigation after the expiration of the statute of limitations.

Rule No. 1033 of the Pennsylvania Rules of Civil Procedure provides for the amendment of a complaint to “change the form of action” or “correct the name of a party.” However, the rule will not permit the addition of new and distinct parties to the litigation, particularly where the statute of limitations has run against the new causes of action. Cianchetti v. Kaylen, 241 Pa.Super. 437, 361 A.2d 842 (1976), Hillbrook Apartments, Inc. v. Nyce Crete Company, 237 Pa.Super. 565, 352 A.2d 148 (1975).

Accordingly, I would affirm the Order of the Court below.