dissenting:
I dissent from the majority’s restrictive interpretation of our rules of civil procedure which deprives an additional defendant of the opportunity to join other defendants.
According to the majority, Robert Grieff, the second additional defendant, erred when he attempted to join as additional defendants, E.F. Johnson Company, the manufacturer of the radio. The majority bases its decision on Pa.R.C.P. 2253. In this writer’s view, the majority overlooks a basic principle. That is, the rules of civil procedure “shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.”
To begin with, Pa.R.C.P. 2253 must be read in conjunction with Rule 2252 which provides in pertinent part:
“(a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any other person whether or not a *200party to the action who may be alone liable or liable over him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.” (emphasis added).
Thus, Rule 2252(a) “gives a defendant the right to join additional defendant^].” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. 66, 73, 426 A.2d 1143, 1147 (1981), petition for allowance of appeal denied June 2, 1981. The time period which governs this right is set forth in Pa.R.C.P. 2253 which 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 thereof unless such filing is allowed by the court upon cause shown.”
In the instant case, the complaint of Kerry Coal Company was filed on October 5, 1977. However, service was not effectuated until October 31, 1977. On February 17, 1978, Beckwith Machinery Company filed a praecipe for a writ, and a writ was issued on February 16th by the Prothonotary of the Court of Common Pleas of Allegheny County. Then on June 2, 1978, Beckwith filed a “PETITION FOR LEAVE TO JOIN ADDITIONAL DEFENDANT OUT OF TIME”, which was granted on June 2, 1978. At this time, appellant became an additional defendant to the lawsuit. Praecipes to issue and reissue writs of summons were also issued to appellant. At this stage in the proceedings, Beckwith obtained new counsel who then filed a complaint to join Robert Grieff as an additional defendant on November 17, 1978. Appellant then filed preliminary objections, on December 6, 1978. The court denied appellant’s preliminary objections in an order which read:
*201“AND NOW, TO WIT, this 31st day of January, 1979, it is hereby ORDERED, ADJUDGED AND DECREED that the preliminary objections of Robert Grieff to the Complaint of Original Defendant Beckwith Machinery Company Against Additional Defendant Robert Grieff are overruled. Additional Defendant Robert Grieff shall plead over within thirty (30) days from the date hereof.”
On February 20, 1979, appellant filed the complaint which forms the basis of the instant appeal, joining appellee, E.F. Johnson Company, and Leonard J. Schmader. Appellee filed preliminary objections in the nature of a motion to strike because “more than 60 days have elapsed since the initial service of the Complaint and more than 60 days elapsed since the service of the Complaint on Robert Grieff and that Robert Grieff to date has failed to get authorization from the court to serve this additional defendant out of time as provided by the Rules of Civil Procedure of the Commonwealth of Pennsylvania. “PRELIMINARY OBJECTIONS IN THE FORM OF A MOTION TO STRIKE” Allegation # 6. The trial court sustained appellee’s preliminary objections on March 24, 1980, and this appeal followed.
Although more than sixty days had elapsed either from the date service of the original complaint was made upon the original defendant or from the date that appellant was served with a copy of the complaint to join him as an additional defendant, in this writer’s view, the language of Rule 2253 is not to be read literally because our Supreme Court has said that “Rule 2253 does not explicitly cover the situation of the joinder of additional defendants when the original defendant has filed preliminary objections to the complaint.” Graham v. Greater Latrobe School District, 436 Pa. 440, 443, 260 A.2d 731, 733 (1970). The reason for refusing to apply the 60-day time limit strictly is because “[i]f the objections are sustained, no problem will arise, however, for either the action will be dismissed or an amended complaint will be filed after which a sixty day period begins. When the objections are overruled, as here, reason and policy require that the defendant be given sixty *202days to join additional defendants.” Id., 436 Pa. at 443, 260 A.2d at 733.
Simply stated,
“ ‘[I]t makes no sense to require the defendant to proceed as if the action will continue [by joining additional defendants] when he has before the court objections which, if successful, will terminate the litigation____’ ” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. at 73, 426 A.2d at 1147. (quoting Graham v. Greater Latrobe School District, supra).
To allow the original defendant 60 days to join additional defendants from the date preliminary objections are overruled, on the one hand, and to deny that same opportunity to those additional defendants, who quite fortuitously, were joined subsequently in the lawsuit scenario, on the other hand, is to exalt form over substance.
The majority’s explanation for stripping appellant of an opportunity to join additional defendants is because:
“Grieff is not an original defendant. The exception found in Graham has never been extended to preliminary objections filed by additional defendants. We see no reason to extend it now. Grieff’s preliminary objections, even if successful, would not have resulted in the dismissal of the action or the filing of an amended complaint by the plaintiff. Because Graham sets forth an exception to the plain language of Pa.R.C.P. 2253, it should be strictly limited to the circumstances found therein. The procedural background required to implement the Graham exception is not present in this case.” At 199. (Emphasis added).
The clear implication from the majority is that had Grieff been the first and original defendant, he could have joined other defendants. However, because he is not, he loses. Concomitantly, because the plaintiff’s complaint would not have been dismissed or amended even if Grieff’s preliminary objections were successful, Graham is inapplicable.
*203This writer considers the Graham principle applicable irrespective of whether the complaint at issue is being filed by the original “plaintiff” or a third party, fourth party, or fifth party “plaintiff”. In fact, we have said that the purpose of a court’s ruling on preliminary objections is “to test at an early stage a pleading’s validity.” Del Boring Tire Service v. Barr Machine, Inc., 285 Pa.Super. at 73, 426 A.2d at 1147 (emphasis added). The dispositive question should be whether a ruling on the party’s preliminary objections, if successful, would terminate that complaint period.
The application of the Graham principle which this author adopts is consistent with a liberal construction of our rules of civil procedure, as interpreted by our Supreme Court. Until Graham is overruled, we should recognize that “[t]he thrust of the Graham decision, however, was to carve out an exception ..., a ‘fourth’ time period”, to Rule 2253. Pa. Gas and Water Company v. Lisbon Contractors, Inc., 288 Pa.Super. 267, 269, 431 A.2d 1041, 1042 (1981). Hence, I must dissent from the majority’s decision that Graham “should be strictly limited to the circumstances found therein.” At 199.