The only question in this case is whether the additional defendant, one year after defendant’s complaint against it was served, may file an answer and new matter thereto raising as a defense to the joinder that the statute of limitations has barred defendant’s right to join the additional defendant on the ground of sole liability to plaintiffs. Since the late filing of the additional defendant’s answer and new matter was without leave of court and without any explanation as to the reason for the delay, we have no alternative but to hold that it was improper and must be stricken.
The pertinent facts are these. On January 30, 1966, one of the plaintiffs, Glenn A. Amsbaugh, who was a minor at the time, was injured while a passenger in the automobile of defendant which collided with a truck stopped on the highway. Plaintiffs sued defendant for the injury and damages. On May 22, 1969, defendant filed his complaint against the additional defendant, alleging that the truck was owned by the additional defendant and was improperly abandoned on the highway by its agent and, therefore, the additional defendant is solely liable to plaintiffs, but if defendant is jointly or individually liable to plaintiffs, then the additional defendant is jointly or severally liable with defendant or liable over to defendant on plaintiffs’ cause of action. Defendant’s complaint was endorsed with a proper notice to plead within 20 days of its service and service thereof was had on the additional defendant on May 23, 1969.
Written interrogatories and answers thereto were then filed by all of the parties. A pretrial conference was held on June 1, 1970 where, for the first time, the additional defendant raised the question of whether it had filed an answer and new matter to defendant’s
We are aware that the provisions of Pennsylvania Rule of Civil Procedure 1026 are not mandatory and that a pleading may be filed after the 20-day period prescribed therein if the opposite party is not prejudiced and justice requires it: Fisher v. Hill 368 Pa. 53 (1951); Markert v. Boulding, 18 Bucks 419 (1968). However, it seems apparent to us that if we were to now expose defendant to the statute of limitations, which, if applicable, would bar defendant from the opportunity of proving to the jury that the additional defendant is solely liable to plaintiffs, the resulting prejudice to defendant is plain enough to take
Secondly, the cases which the additional defendant uses to support its theory that the defense of statute of limitations need not be raised within the 20-day period after service are not on point. For instance, it cites Kitchen v. Grampian Borough, 421 Pa. 464 (1966); Carlin v. Pennsylvania Power and Light Company, et al., 363 Pa. 543 (1950); Zachrel, Admx. v. Universal Oil Products Company, et al., 355 Pa. 324 (1946); Holtby v. Mason, 41 D. & C. 2d 143 (Chester County, 1966), and Agatone v. D’Antonio, 31 D. & C. 2d 138 (Delaware County, 1963) which hold that (1) where the statute of limitations bars a suit directly against an alleged tortfeasor, he may not be joined as an additional defendant in an action for the tort on an allegation that he is alone liable, and (2) where the complaint shows on its face that the additional defendant cannot be solely liable to plaintiff and that the statute of limitations on plaintiff’s claim has run as to the additional defendant, then the defense of statute of limitations may be raised by additional defendant either by preliminary objections or by answer and new matter to defendant’s complaint. These cases set forth the correct law but are no help to the additional defendant here for in each of them, the preliminary objection or the answer and new matter raising the defense of statute of limitation was timely filed.
The additional defendant has cited no case and we have found none which supports its novel proposition that simply because an additional defendant under some circumstances may raise the statute of limitations by preliminary objection instead of by answer and new matter, the additional defendant is thereby
ORDER
And now, January 4, 1971, the preliminary objections of the additional defendant to defendant’s preliminary objections are overruled and dismissed and defendant’s preliminary objections to the answer and new matter of the additional defendant to defendant’s complaint are sustained, and the said additional defendant’s answer and new matter to defendant’s complaint is hereby stricken from the record.
An exception is granted to the additional defendant.